Civil Litigation: Process and Procedures [4 ed.] 0134831047, 9780134831046

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Fourth Edition

Thomas F. Goldman, JD Attorney at Law Professor Emeritus Bucks County Community College

ears on

330

Alice Hart Hughes, JD Attorney at Law Adjunct Professor Bucks County Community College

Hudson Street, NY, NY 10013

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Acknowledgments of third,party content appear on the appropriate page within the text. PEARSON and ALWAYS LEARNING are exclusive traden1arks owned by Pearson Education, Inc. or its affiliates in the U.S. and/or other countries. Unless otherwise indicated herein, any third,party trademarks, logos, or icons that may appear in this work are the property of their respective owners, and any references to third,par ty traden1arks, logos, icons, or other trade dress are for demonstrative or descriptive purposes only. Such references are not intended to in1ply any sponsorship, endorsement, authorization, or promotion of Pearson's prodL1cts by the owners of sL1ch marks, or any relationship between the owner and Pearson EdL1cation, Inc., authors, licensees, or distributors. Library of Congress Cataloging-in-Publication Data

Names: Goldn1an, Thomas F., author. I Hughes, Alice Hart, author. Title: Civil litigation: process and procedures I Thomas F. Goldman, JD, Attorney at Law, Professor Emeritus, BL1cks CoL1nty Community College; Alice Hart Hughes, JD, Attorney at Law, Adjunct Professor, Bucks County Con1munity College. Description: Fourth edition. I Upper Saddle River, New Jersey: Pearson, [2019] I Includes index. Identifiers: LCCN 2017037332 I ISBN 9780134831046 I ISBN 0134831047 Subjects: LCSH: Civil procedure-United States. I Legal assistants-United StatesH andbooks, manuals, etc. Classification: LCC KF8841 .065 2019 I DDC 347.73/5-dc23 LC record available at https://lccn.loc.gov/ 2017037332

1

17

Pearson

ISBN 10: 0, 13,483104,7 ISBN 13: 978,0, 13,483104,6

O CJY.ll_LII GAii O CHAPTER 1 CHAPTER 1A

The Paralegal in Civi I Litigation

3

Appendix Building Your Professional Portfolio and Reference Manual 18

CHAPTER 2

Ethics and Professional Responsibi Iity

CHAPTER 3

Litigation Management and Technology

CHAPTER 4

The Court System, Settlement, and Alternative Dispute Resolution 81

CHAPTER 5

Causes of Actions and Litigation Strategies

CHAPTER 6

Evidence

CHAPTER 7

Interviews and Investigation in Civil Litigation

UNIT Il:IRE

27

47

143

DOCUM~.JS

167

CJ~LUIIGAILO~

CHAPTER 8

Pleadings: Complaint, Summons, and Service

CHAPTER 9

Motions Practice

CHAPTER 10

121

203

237

Pleadings: Responses to Complaint

265

•••

Ill

iv

BRIEF CONTENTS

CHAPTER 11

Introduction to Discovery

CHAPTER 12

Issues in Electronic Discovery

CHAPTER 13

Interrogatories and Requests for Production

CHAPTER 14

Depositions

CHAPTER 15

Other Forms of Discovery

UNIJ_.EIVE

281 301 335

3 61 381

1.ALOUtiE CAS_E

CHAPTER 16

Trial Preparation

CHAPTER 17

Trial

CHAPTER 18

The Electronic Courtroom and Trial Presentation

Postdiscovery to Pretrial

395

421 443

SII CHAPTER 19

Posttrial Procedures

CHAPTER 20

Enforcement of Judgments

APPENDIX 1

Chapter Opening Case Study

APPENDIX 2

Comprehensive Case Study: School Bus-Truck Accident Case 504 Study

APPENDIX 3

Supplemental Case Studies Glossary

525

Case Index Subject Index

542 543

461 485

502

507

UNIT ONE

CHAPTER 1 APPENDIX Bui Iding Your Professional Portfolio and Reference Manual 18

INTRODUCTION TO CIVIL LITIGATION

Opening Scenario 18 Portfolio Exercises: Legal Team at Work

CHAPTER 1 The Paralegal in Civi I Litigation 3 Learning O bjectives

Referen ce Manual: Civil Litigation Team at Work 19

Law O ffice Reference Manilal Creating the Reference Manual

2

Introduction to Civil Litigation The Ro le of the Paralegal in Civi I Liti gation

4 4

CHAPTER 2 Ethics and Professional Responsibility 27 Learning O bjectives

11

Interviewing Clients and Witnesses 11 Investigating Facts 11 Conducting Discovery 12 Drafting Pleadings and O ther Documents 12 Assisting at Trial 13 Administrative Tasks 13 Organizing and Managing Case Files 14 Productivity and Cost.-Effectiveness 14 15

Regulation of the Practice of Law

15

Review Questions and Exercises

16

Internet and Technology Exercises

16

Chapter Opening Scenario Case Study

16

Building Your Profess ional Portfolio and Reference Manual 17

29

The Paralegal and Licensing 29 Penalties for the Unauthorized Practice of Law 31 Avoiding UPL: Holding O neself O ut 32 Avoiding UPL: Giving Advice 33 Avoiding UPL: Filling O ut Forms 33 Avoiding UPL: Representing Clients 34 Avoiding UPL: Guidelines 35 Ethi ca l Obligations

Virtual Law Office Experience

26

Introduction to Ethics and Professional Responsibility 28

Tasks of the Civi I Liti gation Paralegal

Chapter Summary

25

7

Soft Skills 7 Resourcefulness 8 Commitment 8 Analytical Skills 8 Interpersonal Skills 9 Creating an Impression 9 Communication Skills 10 Professional ism 11

Key Terms

19 20

Examples of a Policy, Form, Procedure, and Contact Record 21

Policy 21 Forms 22 Procedures 24 Contacts and Resources

Managing Client Relationships 4 5 Members of the Legal T eam 6 Corporate Paralegals in Litigation Litigation Support Manager 6 Ski Ils of the Paralegal

18

36

Duty to Supervise 36 Ethical Guidelines and Rules 37 Conflict of Interest 37 Ethical Wall 38 Freelance or Independent Paralegal

39

17

v

vi

CONTENTS

Confidentiality

UNIT TWO

39

Candor and Fairness in L itigation

39 40

Fairness to O pposing Party and C ounsel

41

D uty to Report Unethical Conduct Key Terms

I

42

Chapter Summary

PLANNING THE LITIGATION CHAPTER 4 The Court System, Settlement, and Alternative Dispute 81 Resolution

42

Review Questions and Exercises

43

Internet and Technology Exerci ses

44

Civil Litigation Video Case Studies

44

Chapter Opening Scenario Case Study

44

Building Your Professional Portfolio and Reference Manual 44 Virtual Law Office Experience

80

L earning O bjectives

Introduction to the Court System, Settlement, and Alternative Dispute Resolution 82 Sources of American Law

45

C onstitutions

CHAPTER 3 Litigation Management and 47 Technology

Statutes

82

83

Administrative Regulations and Adjudications Case Law

Cause of Action and Remedies Jurisdiction

86

Introduction to Litigation Management and Technology 48

Standing

86

Case or C ontroversy

Technology in Civi I Litigation

Authority of the C ourt

48

49

O nline D ata Storage and Collaboration Electronic Database Basics

D ata Repositories

50

52 56

89

91 91

H ighest Appellate C ourt or the Supreme C ourt

Constructing the Q uery

56

T he Reality of U sing D atabases

Settlements

56

Organizing and Managing Case Files

58

U sing Case Management Systems Office Management Software

94

60

65

Settlement Documents

95

95

Settlement L etters Settlement Brochures

O ffice Management Program Functions Calendar Maintenance Programs

95

Negotiation of a Settlement

70

71

72

95

Ethical Considerations

98

Documents for Settling and Terminating a Lawsuit 99

73

Calendar Program O verview

93

When to Settle

Case and Practice Management Software

100

Minors' Settlements

74

Settlement Documents

75

Chapter Summary

89

Intermediate Appellate Courts

D atabase Issues in L itigation

Key Terms

89

T rial Courts

54

T ime--Keeping Software

86

Organization of the Court System

Navigating Electronic D atabases

Searches

84

86

Removal and Remand

50

D atabase Example

Venue

100

C onfidentiality and Settlements

75

Review Questions and Exercises

T ermination of Lawsuits

77

Internet and Technology Exercises

77

Civil Litigation Video Case Studies

78

Chapter Opening Scenario Case Study

T ypes of A DR Private A DR Key Terms

106

107 107

113

Building Your Professional Portfolio and Reference Manual 79

Chapter Summary

Virtual Law Office Experience

Review Questions and Exercises

79

103

105

Alternative Dispute Resolution 78

83

83

46

L earning O bjectives

82

113 115

92

CONTENTS Internet and Technology Exerc ises Chapter Opening Scenario Case Study Comprehensive Case Study

116 11 7

11 7

Building Your Professional Portfolio and Reference 117 Manual Virtual Law Office Experience

118

CHAPTERS Causes of Actions and Litigation Strategies 121 Learning Objectives

120 Introduction to Causes of Actions and Litigation Strategies 122 122 Litigation Strategy and Options Torts 125 Defens es to Tort Actions 12 7 Products Liability and Strict Liability 128 Contracts 12 9 Elements of Common Law Contracts 129 Defense to Contracts 130 The Uniform Commercial Code 131 Damages 134 Monetary Damages 134 Equitable Remedies 134 Calculating Damages 135 Key Terms 137 Chapter Summary 138 Review Questions and Exercises 140 Internet and Technology Exercises 140 Chapter Opening Scenario Case Study 141 Building Your Professional Portfolio and Reference 141 Manual Virtual Law Office Experience 141

Probative Value 147 Judicial Notice 147 Inadmissible Evidence 147 Types of Tangible Evidence

148

Tangible Evidence 149 Docitmentary Evidence 149 Demonstrative Evidence 150 Physical Evidence 150 Testimony of Witnesses

151

Giving Testimony 151 Form of Questions 15 2 Lay Witnesses 152 Expert Witnesses 153 Prerecorded Testimony 154 Challenging the Credibility of Witnesses The Hearsay Rule

154

156

Statements That Are Not Hearsay 156 Exceptions to the Hearsay Rule 157 Residual Exception 160 Raising Objections 160 Key Terms

161

Chapter Summary

161

Review Questions and Exercises

1 63

Internet and Technology Exercises

163

Civi I Litigation Video Case Studies

1 64

Chapter Opening Scenario Case Study Comprehensive Case Study

1 64

Building Your Professional Portfolio Virtual Law Office Experience

164 164

165

CHAPTER 7 Interviews and Investigation 167 in Civil Litigation Learning Objectives

CHAPTER 6 Evidence 143 Learning Objectives

142 Introduction to Evidence 144 Evidence 144 Fact 144 Introduction to the Rules of Evidence 145 Admissibility of Evidence Relevant, Reliable, and Real 145 Relevant Evidence 145 Reliable Evidence 146 Real Evidence 146

166 Introduction to Interviews and Investigations Initial Contacts 168 The Screening Interview 168 Letters of Engagement and Termination of Engagement 169 Preparing for the Interview

172

Investigation Checklists 172 Physical Surroundings 175 Dress and Appearance 176 Communication Skills in a Multicultural 176 Society Gender Differences 177

168

vii

viii CONTENTS Conducting the Interview

1 79

Deadlines and Time Constraints

Listening Skills 180 Leading Q uestions 181 Open~En.ded Qilestions 181 Privileged Conimunication 182 Moral versus Ethical Obligations Expert Witnesses

229 Amendment or Supplement to the Complaint 230 Key Terms 230 Ch apter Summary 230 Review Questions and Exerci ses 232 232 Internet and Technology Exerc ises Civil Liti gation Video Case Studies 233 233 Chapter Opening Scenario Case Study Comprehen sive Case Study 233 Building Your Professional Portfo lio and Reference M anual 23 4 2 34 Virtual Law Office Experience

Calctllating Deadlines

182

1 83

Investi gating Cl aims

184

A Defense Perspective 186 O btaining Official Reports 186

Fact Analysis 186 Locations 188 T angible Evidence 189 T imelines 189 Freedom of Information Act 190 Locating Witnesses 192 Directories 193 Common Sense Analysis 194 Key Terms

•

CHAPTER 9 Motions Practice Learning O bjectives

Form of Motions

196

Review Question s and Exerc ises

197

Civil Litigation Video Case Studies

198

Chapter Opening Scenari o Case Study

198

198

Building Yo ur Professional Portfolio and Reference Manual 199 Virtual Law Offi ce Experience

199

UNIT THREE

DOCUMENTS IN CIVIL LITIGATION

Pleadings: Comp laint, Su mmons, and Service

Pleadings

202

204

Posttrial Motio ns

203

2 56

Preparing the Summons 210 Civil Cover Sheet 212 Drafting the Complaint 213

261

Internet and Tec hnology Exercises

261

Civil Liti gation Video Case Studies

261

Ch apter Opening Scenario Case Study 223

256

2 59

Review Questions and Exerci ses

207

Filing Fees 223 Electronic Filing 224 Service of Process 224

252

259

Ch apter Summary

205

Filing and Serving the Complaint

252

Motion for ]ildgment as a Matter of Laq,v Motion to Mold the Verdict 257 Motion for a New Trial 259 Key Terms

204

Statute of Limitations

250

Motion for Summary Judgment 253 Motion in Liniine or Pretrial Motion 255

CHAPTERS

Rules of Court

2 38

Motion to Compel 250 Motion for Sanctions 250 Motion for Protective O rder Pretrial Motions

Introduction to Pleadings

238

Motion to Enlarge T ime to Respon.d 239 Motion for Default ]tldgment 241 Entry of Default on the Docket 242 Entry of Defattlt ]u.dgment 242 Setting Aside Default 245 Rule 12(b) Motions 246 Motion for ]itdgment on the Pleadings 248 Discovery Motions

Learning Objectives

236

2 38

Motions in the Pleading Ph ase

197

Internet and Technology Exerc ises

Comprehensive Case Study

237

Introduction to Motions

196

Ch apter Summary

229

Comprehensive Case Study

262

262

Building Your Professi onal Portfolio and Reference M anual 262 Virtual Law Office Experience

262

CONTENTS Rules of Court and Rules of Evidence

CHAPTER 10 Pleadings: Responses to Complaint 265 Learning Objectives

264

Introduction to Respon ses to Complaint Responsive Pleadings

Scope of Discovery Privilege 284

266

266

Pleadings Allowed by Federal Rules of Civil 266 Procedure Time Deadlines and Entry into Tickler System Responses to the Complaint 267 Answer to the Complaint

267

269

Discovery Timing

292

292

Review Questions and Exercises

2 78

Internet and Technology Exercises

278

Civi I Litigation Video Case Studies

2 78

Chapter Opening Scenario Case Study

293

294

Seeking Compliance as the Issuer of Discovery Requests 294 Seeking Compliance as the Recipient of Discovery 2 95 Requests

277

Key Terms

296

Chapter Summary

278

296

Review Questions and Exercises

2 79

Building Your Professional Portfolio and Reference Manual 279 V irtual Law Office Experience

291

Compliance and Court Intervention

276

276

Comprehensive Case Study

291

Rule 26(a) Disclosure Requirements 293 Information Subject to Mandatory Disclosure Experts and Witnesses 294

275

Failure to Respond to Complaint Chapter Summary

288

Sequence of Discovery

Third;Party Complaint 275 Third;Party Answer 276 Key Terms

Claim of Privilege 285 Exceptions and Limitations to the Work Product 287 Doctrine Exception to the Third;Party Document Exception 287 Internal Investigations and Evidentiary 288 Privileges Depositions 288 Interrogatories 288 Production of Documents or Things Physical and Mental Examinations Requests for Admission 291

Affirmative Defenses 270 Causes of Action 271 Prayer for Relief 272 Third-Party Practice

284

Forms of Discovery

269

Caption 269 Numbered Paragraphs Prayer for Relief 270

283

2 79

297

Internet and Technology Exercises

297

Civi I Litigation Video Case Studies

2 97

Chapter Opening Scenario Case Study Comprehensive Case Study

298

298

UNIT FOUR

Bui lding Your Professional Portfolio and Reference 298 Manual

FORMAL DISCOVERY METHODS

Virtual Law Office Experience

CHAPTER 12 Issues in Electronic Discovery 301

CHAPTER 11 Introduction to Discovery 281 Learning Objectives

Learning Objectives

280

Introduction to Discovery Purposes of Discovery

298

282

Evaluating Your Client's Case 282 Evaluating Your Opponent's Case 282 Preparing for Trial 282 Preserving Oral Testimony 282 Impeaching Witness Testimony 283 Facilitating Settlement 283

282

300

Introduction to Electronic Discovery 302 Discovery in the Technological Age

302

E;Discovery under the Federal Rules of Civil Procedure 303 Clianges in Traditional Discovery 304 Ethical Issues in Document Delivery 305 Preserving Electronic Materials 305

ix

x

CONTENTS

Docwru.•1us in Litigation 305 Producirt,l? Electronic Materittls 308 Cose of Producillg Elocrrouic .Mawrials 308 DesrrucricOgnirion 316 Electronic Discovery in Litigation 316 Reviewing Electtonic Docwnenu 317 Obcai1ling Docume,us t iitJ Paper Discovery J J7 Corurerring Dot·umc..>tiU

318

Emerging Case Law and Court Rules S{>Olia,ion of Eddence 318

318

Predictive Coding/Technology-Assisted Review 322 Protecting Confidential or Privileged Materials 323 Inadvertent Disclosure of Confidential lniormation 324 Suuc Cc>urrs 325 Fetlt."t'af Courts 325 Key Terms 327 Chapter Summary 32 7 Review Questions and Exercises 330 Internet and Technology Exercises 331 Civil Litigation Video Case Studies 331 Chapter Opening Scenario Case Study 33 1 Comprehensive Case Stud)' 3 32 Building Your Proiessiona l Portfolio and Reference Manual 332 Virtual Law Office Experience 332

CHAPTER 13 Interrogato ries and Requests fo r ProducJion 335 Let1n1ing Objec-,it:es

334

Introduction to Interrogatories and Requests for Production 336 Interrogatories and Requests for Production of 336 Documents and Things

341 Timeframe for Discovery lnirial Di.scov) l".S. Attorneys ~Ia.nual • ENRD Resource )ianual

• Title 1: Organization and Functions • Title 2: Appeals

6 . Procedures In Filing Complaints In Condemnation

• Title 3: EOUSA

After all the documents listed in the ENRD Resource itanual at 5 are prepared, the U.S. Attorney should:

• Title 4: Civil

• Title 5: E.'\1RD • Title 6: Tax • Title 7: •.\ntitrust • Title 8: Civil Rights

• Title 9: Criminal • Organization ...\nd Functions llanual • Appeals Resource ~lanual • EOUS..o\ Resource ?,fanual • C~il Resource ~Ianual

"' ENRD Resource Manual

A. File the complaint (see~ Resource :'.\Ianual at 24 or 25) and the declaration of taking, if one has

been furnished; B. In cases ,,·here a declaration of taking is filed. deposit the check for the estimatedjust compensation in the registt;· of the court. and ha,·e the clerk exec.ute the clerk's receipt in duplicate; C. \\'hen requested1 file a motion for order for delivery of possession (see ENRD Resource )tanual at 35) and present an order for deli,·ery of possession (see EXRD Resource l1anual at 44) to the court as soon as possible (depending upon local practice and the circumstances of a gi,·en case, a hearing on such a motion, after notice and senice, may be required, especially ,,·here the condemned tract is not vacant land); D. Deli,-er to the cler-k, or hand to the United States 11arshal (depending on local practice), a notice of condemnation, see El\"'RD Resouroe ?.Ianual at 27, or for each defendant unless he/ she bas executed a \\'an-er of senice, see ENRD 11anual at 52 ('I\\"O copies of each such notice ,,-ill be required; one copy for senice on the defendant and one copy ,,·bicb the United States )1arshal ,,in make his/her return.);

E. Record in the local land records the lis pendens , a copy of the declaration of taking or a copy of the judgment on declaration of taking. as pro,ided in US..UI s-.15 ..524;

Source: © United States Department of Justice

23

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LEARNING OBJECTIVES After studying this chapter, you should be able to: 1. Analyze situations to determine if they involve the unauthorized practice of law.

2. Describe the ethical obligation owed by managing and supervising attorneys of appropriate hiring, delegating, and supervising members of the legal team.

3. Understand the concept of conflict of interest for the legal profession. 4. Explain what is considered confidential under the ethical guidelines.

5. Explain the rationale for the obi igations of candor and fairness in Iitigation.

•

ICS an •

ro ess1ona

CHAPTER

•

ons1 OPENING SCENAR IO

Ethan Benjamin and his associate Cary Eden were having coffee in the courthouse coffee shop during a break in a trial. At a nearby table, two paralegals from another firm were talking about a case that one of them was working on. The case had been the subject of an in--depth article in the morning newspaper; the article mentioned previously unreleased documents and facts. Ethan wondered aloud whether the reporting of the facts and evidence about a case in a newspaper removed the attorney or paralegal restriction on discussing details about a case. Cary reminded him about the ethical obligation of confidentiality under the lawyer's rules of ethics in their state and its application to members of the legal team. They agreed it was a topic that should be discussed at their firm's weekly meeting. They also agreed that this was something that should be a written policy guideline in the office and employee manual. Cary wondered to herself if she could still tell her friend (who was the opposing counsel in that case) what she had overheard; the information might help him win the case.

OPEN ING SCENAR IO LEARNING OBJECTIVE Understand the duty of confidentiality.

VIDEO INTRODUCTION

Ethics And Professional Responsibility After watching the video at www.pearson.com/goldman--civil--litigation, answer the following questions: 1. What is required for a lawyer to appear in court? 2. What is the practice of law? 3. Who is ultimately responsible for breaches of ethical behavior?

27

28 CHAPTER 2

INTRODUCTION TO ETHICS AND PROFESSIONAL RESPONSI Bl LITY

WEB RESORCES -· Contrast and compare " __,. ,, the Rules Governing the Missouri Bar and the Judiciary Rules of Professional Conduct at the Missouri State Courts website with the American Bar Association Model Ru les of Professional Responsibi Iity at the ABA website and the ethical rules in your jurisdiction. ethics Minimally acceptable standards of conduct in a profession.

Model Ru les of Profess io nal Co ndu ct The American Bar Association set of proposed ethical standards for the legal profession.

WEB RESORCES Contrast and compare the Arkansas Rules of Professional Conduct at the Arkansas Judiciary website with the American Bar Association Model Rules of Professional Responsibility at the ABA website and the ethical ru les in your ju risdiction.

WEB RESORCES Information on state adoption of the model rules can be found at the ABA website.

WEB RESORCES The ABA Model Rules of Professional Conduct can be found at the ABA website.

WEB RESORCES Contrast and compare the Oregon Rules of Professional Conduct at the O regon State Bar website with the American Bar Association Model Rules of Professional Responsibility at the ABA website and the ethical rules in your jurisdiction.

Professions such as law and medicine are regulated (by licensing or other means) for the protection of the public. The legal profession generally re-quires the passing of a written examination before admission to practice in the courts of a particular state. Unlike universal licensing of lawyers, the li-censing of the paralegal profession is limited to a few states. Every profession develops a set of guidelines for those in the profession to follow. These may be codes of conduct or ethical guidelines. National paralegal associations such as NALA (the National Association of Legal Assistants) and NFPA (the National Federation of Paralegal Associations) have ethics guidelines for members. These organizations require members to conduct themselves in accordance with these guidelines, observance of which is a condition of continued membership in the organization. Ethics codes or rules typically set forth the minimum in ethical behaviorthe very least each professional should do. In the field of law, these rules are referred to as ''the rules of ethics'' or ''the rules of professional responsibil-ity. '' Each state controls the right to practice law, and each state has adopted its own ''rules of ethics." According to the American Bar Association, as of 2017, California was the only state not to have professional conduct rules that follow the format of the ABA Model Rules of Professional Conduct for lawyers. This wide--scale adoption provides a high degree of consistency in the ethical guidelines for the legal profession across the country. The Supreme Court or legislature of each state has a committee or board that is authorized to enforce state rules of professional responsibility or eth-ics. States typically use a disciplinary board, which may be part of the state Supreme Court or part of a statewide bar association, to receive and investi-gate complaints against lawyers. Among the ethical obligations of the attorney and the legal team acting as agent of the attorney are: Rule 1.1, Competency, Rule 1.6, Confidentiality of Information, Rule 1. 7, Conflicts of Interest: Current Clients, Rule 3.3, Candor Toward the Tribunal, Rule 3.4, Fairness to Opposing Party and Counsel, and Rules 5.1 and 5.3, Duty to Supervise. As more members are added to the legal team who do not fit within the traditional roles of lawyer, paralegal, legal assistant, clerk, or legal secretary, the concern broadens as to how the rules of confidentiality and privilege will be applied and enforced. The courts have recognized that the lawyer must engage others to help in the representation of clients, and numerous cases have ex-plored the use of legal support staff like paralegals and investigators. The use of technology or computer consultants, however, may not be as clear. Certainly, computer consultants are essential where large volumes of e--discovery are involved. Most computer consultants, however, are not adequately edu-cated in the ethical rules of the legal profession. Levels of technical ability and competency are important in choosing and using computer consultants and support staff. Also important are the confidentiality issues in adding computer and technology staff to the legal team; they are nonlegal person-nel who may have access to files that contain privileged or confidential client

ETHICS AND PROFESSIONAL RESPONSIBILITY

29

information and tr ial strategy. T echnology staff must understand the ethical obligations and t he confidential nature of the files on which they are working.

PRACTICE TIP

LEARNING OBJECTIVE 1

Current ethical requirements for competency require a knowledge of technology and its use i n the p ractice of law. The duty of supervision will logically require supervisors to understand the technology being applied by consultants and o thers.

Analyze situations to determine if they i nvolve

the u nauthorized practice of law.

REGULATI ON O F THE PRACTICE O F LAW Just as the practice of m edicine and other professio ns is regulated, the practice of law is regulated by state government through legislation , regulation, and court rules in an attempt to protect the public from incom petent and un.. scrupulous practitio ners. As a method of regulating and monitoring those w ho offer services to t he public, certain occupations and professions such as law require o ne to obtain a license. Obta ining a license m ay be as simple as completing a form and providing proof that the required education and/or experience requirements have been satisfied. The profession of la,v, in most cases, requires taking a q ualifying examinat io n after proving that the required ed ucational background has been obtained. T his has not always been the case. In some states, reciprocal adm issio n, that is, admission in another jurisdic.. tion for a required period of time, granted adm ission to the sec.a nd jur isdic.. tion without the examination r equirement. T o d ay's rules generally require even seasoned attorneys w ho seek admission to states s uch as California and Florida to take the examination for that state as a condition for admission.

The Paralegal and Licensi ng There are, with a few exceptio ns, no state licensing requirem ents fo r par alegals. Some states, s uch as California) Maine, and North Carolina, have enacted legislation establishing lkens ure to perform certain functions fre.. quently performed by paralegals. Generally. these enactn1ents seek to regu, late the unsupervised performance of certain tasks by freelance or indepen.. dent paralegals, such as d ocument.-completion services. There is a fine Hne between lawful acti vity and unlawful practice of law. Recommend ing o r selecting a form that may i mpact a person's legal rights is likely to be treated as practicing law and would t herefore subject the unli, censed person to a charge of the unautho rized practice of law. The d ilemma fo r the paralegal is to know w hen advising or helping someone fill in blank forms constitutes the U nauthorized Practice of Law (UPL). A t best, the.se laws carve out a small part of the practice of law that can be perfonn ed by nonlawyers fo r o thers without risking the performance of acts that constitute the unlawful practice of law. But none allow anyone other than a la,v.. yer properly admitted to practice in the jurisdiction to give legal advice o r opin.. ions. Even the selection of the correct fo rm is considered a lawyer 's function. Although each state is free to define the practice of law differently. the stat, utes have cenain elements in common. T ypical of the var ious states' definitions of the practice of law is that of Rule 31, Rules of ,he Supreme Court of Arizona . A. " Pract ice of law" means providing legal advice or services to o r for another by: J. preparing any docu1nem in any medium ittrended to affect or secure legal rights for a specific person or entity; 2. preparing or expressiog JegaJ opil)ions:

WEB RESORCES Cor1tt.1s1and com-pare chc Rhode Island

Rules of Professional Conduct ar the Rhode Island Judiciary website with the American Bar Association Model Rules oi Professional Rcsponsibil i1y al the ABA website and the ethical rules in yoor jurisdiction.

i't

WEB RESORCES

1;1q

Contrast aod compare 1he \.Visconsin Rules of Professional Conduct for Attorneys at the \i\liscoosin Slate Legislature websilc with the Amctican Bar Association Model Rules of Proicssional Responsibility at the ABA websi1e and 1he ethical rules in your jurisdiction.

unauthorized practice of law (UPL) Civing legal advice$ if legal rights may be affected, by anyone not licensed fo pradice law.

Jii'\ WEB RESORCES ~ • Contrast and compare 1he Arizona Ethics Rules al the State Bar of Arizona website with 1he Amcricar1 Bar Association ivk>del Rules of Professional Responsibili1y at the ABA website and the ethical rules in your jurisdiction.

30 CHAPTER 2 3. representing another in a judicial, quasi;judicial, or administrative proceed; ing, or other formal dispute resolution process such as arbitration and mediation; 4. preparing any document through any medium for filing in any court, ad; ministrative agency or tribunal for a specific person or entity; or 5. negotiating legal rights or respon sibilities for a specific person or entity....

State Regulation

SCOPE OF PRACTICE Washington State Legal Technicians are allowed to: • •

•

•

•

•

• •

explain facts and relevancy, inform the client of procedures and "anticipated course of the legal proceeding," provide the client with self-help materials approved by the Board or prepared by a Washington state lawyer, review and explain the other side's documents and exhibits, select and complete forms approved by various groups, perform legal research and write legal letters and documents, but only if reviewed by a Washington lawyer, advise the client about other needed documents, assist the client in obtaining needed documents.

Source: Quote by Robert Mongue. Used by permission of Robert Mongue.

Individual states have used several techniques to set standards and regulate the profession. Some states control the profession by enacting a statute that defines who may identify themselves as a ''paralegal.'' California's statute Cal. BPC §6450 defines a paralegal as someone qualified by education, training, or work experience who performs substantial legal work under the supervision and di-rection of an active member of the state bar. The code also defines a paralegal's duties, states minimum educational standards and continuing legal education requirements, and sets fines and jail time for anyone who violates the law. In June 2012, the Supreme Court of Washington State authorized the issuance of a Limited License Legal Technician, which grants qualified parale-gals a license to engage in certain defined legal functions. While paralegals are not required to obtain the Limited License, only qualified paralegals may apply for it. In November 2015 a Utah Supreme Court Task Force to Examine Limited Legal Licensing recommended: (1) The supreme court should: Exercise its constitutional authority to govern the practice of law to create a subset of discrete legal services that can be provided by a licensed paralegal practitioner in three practice areas: temporary separation under Section 30--3--4.5, divorce, paternity, cohabitant abuse and civil stalking, custody and support, and name change; eviction; and debt collection. The state bar associations of some states have recognized the paralegal professional. A state bar association is not a governmental body; rather, bar associations are statewide professional organizations formed by attorneys to advance their profession. Eleven states have voluntary certification programs, including Ohio, Delaware, Indiana, Kentucky, Louisiana, Minnesota, Mississippi, New Jersey, North Carolina, Pennsylvania and Texas.

Florida Registered Paralegal. A Florida Registered Paralegal is a person with education, training, or work experience who works under the direction and supervision of a member of The Florida Bar; who performs specifically dele-gated, substantive legal work for which a member of The Florida Bar is respon-sible; and who has met the requirements of registration as set forth in Chapter 20 of the Rules Regulating The Florida Bar. A Florida Registered Paralegal is not a member of The Florida Bar and may not give legal advice or practice law. Florida Registered Paralegal and FRP are trademarks of The Florida Bar. (Source: ''Florida Registered Paralegal program,'' http://www.floridabar.org , Used by permission from Florida Registered Paralegal.) Ohio State Bar Association Certified Paralegal. The Ohio State Bar Associa-tion offers a voluntary credentialing program for paralegals. An individual meeting the OSBA definition of ''paralegal'' who has satisfied the eligibility re-quirements and passed a written examination will be designated as an ''OSBA Certified Paralegal.'' This credential, along with a logo provided for the purpose,

ETHICS AND PROFESSIONAL RESPONSIBILITY

31

ma)' be used by the paralegal to the extent permitted by the S upreme Court of Ohio's Rules for the Government of the Bar and Rules of Professional Conduct. OSBA Paralegal Certification provides a valuable credential fo r paralegals in Ohio thro ugh the use of objective stand ards that measure the training, knowledge, experience, and skill of paralegals. [t requires a commitment to excellence and will assist law)'ers and law firms in id entifying highly qualified paralegal professionals. (Source: http://www.ohiobar.org/pub/?articleid_785.) \Xlhether a statutory definition o r a certificatio n recognized by the bar association, the goal is delivery of quality legal services at afford able prices with a reasonable stand ard of living for members of the legal profession and the paralegal profession. The traditional role of the atto rney in advising and representing cl ients is limited to those who are admitted co practice as lawyers under the applicable state law. Some exempt io ns do exist that allow nonlaw.. yers to perform certain services under state law, s uch as document prepara, tion under California law. Federal Practice

Under fed eral regulations. nonlawyers may represent parties before the U.S. Social Security Administratio n , the U.S. Patent and Trademark Office, and other government agencies. A conflict may arise between the federal law and the state law that limits the representation. Fo r example, Florida sought un, successfully to enjoin a practitio ner authorized to practice before the Patent Office, alleging U PL (S/>erry ~. Florida, 373 U.S. 379 ( 1963)). Under federal regulation, a paralegal can , without supervisio n, repr e, sent individuals before the Social Security Adm i nistration and can appear befor e Administrative Law Judges on behalf of clients. Paralegals may ap, pear as representatives of claimants fo r disability claims; N{edicare parts A, B1 and C: and cases of overpayment and underpayment. As representative of a clain1ant, the paralegal in p ractice before the Social Security Administratio n may obtain information, subm it evidence, and m ake statements and argu.m ents. T he difference between the paralegal and the attorney is on ly in the matter of direct versus indirect payment for services. The Social Security Administratio n pays the attorney d irectly. w hereas the paralegal must bill the cl ient for services rendered. \Vithin the Social Security Administratio n, paralegals are employed as decision writers and case technic ians.

Penalties for the Unauthorized Practice of Law States such as Pennsylvania have specifically addressed the issue of unauthor.ized practice o f law by paralegals and legal assistants. The Pennsylvania s tat.Ute on the unauthorized practice of law makes it a n1isdemeanor for "any person, including. but not li mited to, a paralegal o r legal assistant who within this Comm o nwealth, shall practice law ..." 42 Pa. C.S.A. § 2524. The Pennsylvania statute seems to address concerns that the general public will misinterpret the title of paralegal o r legal assistant as denoting a person admitted to practice law in the Commonwealth. A n unresolved issue in Pennsylvan ia, and in other states, is to define what specific conduct the courts will ho ld to be the practice of law. Because the interpretation will vary from state to state, the paralegal must be aware of the local requirements and Ii m i.rations that define the unauthorized practice of law within that jurisdictio n. (n those states that have enacted legis lation regulating para legal activity, some g uidance is offered by the defined activity t hat is permitted. For example. California has included within its Business and Professional Code the

, Ii\ WEB RESORCES ~ " The complete version of the Formal Opinion is al the New York City Bar website.

i'i

a,•

WEB RESORCES Contras, aod com. pare Ruic 1.6(c)(4)

• of the Pennsylvania

Rules al

the Disciplina,y Board of the Supreme Coun of Pennsylvania website with 1he American Bar Association tv1odcl Rules of Pmfcssional Rcsponsibili1y at the ABA website and the ethical rules

in your jurisdiction.

WEB RESORCES Read the en1ire ar 4

licle at the Disciplinary Board of the Supreme Court of

Peonsylvania website.

32

CHAPTER 2

licensing of persons as ''Unlawful Detainer Assistant'' and ''Legal Document Assistant'' and defining the activity permitted. Chapter 5.5. Legal Document Assistants and Unlawful Detainer Assistants Article 1. General Provisions 6400(a) ''Unlawful detainer assistant'' means any individual who for com-pensation renders assistance or advice in the prosecution or defense of an unlawful detainer claim or action, including any bankruptcy petition that may affect the unlawful detainer claim or action. Cal. BPC §6400(a).

Avoiding UPL: Holding Oneself Out With so much uncertainty about what constitutes the unauthorized practice of law, the question every paralegal must ask is ''How do I avoid UPL?'' Some general guidelines should be followed. A common thread in the guidelines of how to avoid committing UPL is the prohibition of holding oneself out as a lawyer when one has not been admitted to practice law. The Florida statute was amended recently to read: Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or will-fully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree ... §454.23 Fla. Stat.

California, in the Business and Professional Code mentioned above, rein-forces the concept of not misleading the public into thinking one is a lawyer when he/she provides limited service, by requiring the following statement to be made to prospective clients: (4) The statement: ''I am not an attorney'' and, if the person offering legal document assistant or unlawful detainer assistant services is a partnership or a corporation, or uses a fictitious business name, ''(name) is not a law firm. I/we cannot represent you in court, advise you about your legal rights or the law, or select legal forms for you.''

For the paralegal, the first rule is to inform the parties with whom they are dealing that they (paralegals) are not lawyers. Paralegals must not hold themselves out as being anything more than paralegals. Parties with whom the paralegal has contact must be aware of the limited role the paralegal plays on the legal team. Other lawyers, members of the legal team, and the court-house staff are put on notice by being informed of the person's status as a paralegal. This may be by oral comment, written statement (such as a letter signed using the title ''paralegal''), or presentment with a business card clearly showing the title of ''paralegal.'' Advising clients, witnesses, and other members of the general public of the paralegal's role is not as easy. Those who are not properly educated about the role of the paralegal may believe that a paralegal is someone with advanced training and knowledge who can perform some of the functions typically performed by lawyers, including giving legal advice and opinions. The safest course is to be certain the other party is not misled about the role of the para-legal. Use of the statement from the California Business and Professional Code above is a start: ''I am not an attorney." ... ''I ... cannot represent you in court, advise you about your legal rights or the law, or select legal forms for you."

ETHICS AND PROFESSIONAL RESPONSIBILITY

Even this statement may not always be effective. Some members of the community may come from backgrounds where the distinctions among vari-ous members of the legal team are not clear for example, those who come from countries where the legal systems are different or where different terms are used for those who perform legal functions such as notaries. For non--native speakers of English, inaccurate translation also may play a role in the misunderstanding. To some clients, the paralegal is the ''face'' or main contact with the law firm. The paralegal may be the first point of contact and the one through whom all documents and information are com-municated by the lawyers in the firm. Paralegals must make it clear that they are paralegals and not lawyers. In a first meeting with anyone client, witness, opposing counsel, or court personnel the wisest course of action is to advise that person of your posi-tion as a paralegal. A short statement like ''I am Ms. Attorney's paralegal'' may be sufficient to put the other party on notice. Business cards and letterhead, where permitted, should clearly state the title of ''paralegal.'' Correspondence always should include the title as part of the signature block. Never allow the other party to think you are anything other than what you are a professional who is a paralegal. For those who are not familiar with the role of the paralegal, you may have to clarify what a paralegal can and cannot do in your jurisdiction.

Avoiding UPL: Giving Advice Every UPL statute or rule prohibits anyone other than a lawyer properly ad-mitted to practice in the state or jurisdiction from preparing or expressing legal opinions. Clearly, then, a paralegal cannot give a legal opinion or give legal advice. It sounds simple, but the reality is that paralegals must constantly be on guard to avoid giving legal advice or rendering a legal opinion. Clients and those seeking ''a little free advice'' may not want to respect the limitations of the paralegal's role in the legal system. Certain conduct required or requested by an attorney or client should, at the very least, cause the paralegal to pause. A client's request to prepare a power of attorney ''without bothering the lawyer'' or to ''go with me to the support conference'' should raise a caution flag in the paralegal's mind. Even in a social setting, you may have to repeat the state-ment, ''I am not an attorney." ... ''I/we cannot represent you in court, advise you about your legal rights or the law, or select legal forms for you." When is giving advice an unauthorized practice of law? If legal rights may be affected, it probably is legal advice. The question of what advice is legal ad-vice is not always easy to answer. Consider the seemingly innocent question, ''How should I sign my name?'' In most circumstances, the answer might be: ''Just sign it the way you normally sign your name." But when a person is signing a document in a representative capacity for example, as the officer of a corporation or on behalf of another person under a power of attorneytelling the client to ''just sign your name'' might be giving legal advice because the client's legal rights could be affected if he or she does not indicate the representative capacity.

Avoiding UPL: Filling Out Forms Filling out forms for clients also can be a source of trouble. In some jurisdictions, paralegals are permitted to assist clients in preparing certain doc-uments. Other courts, however, view this assistance as rendering legal advice.

33

34

CHAPTER 2

As a general matter, other courts have held that the sale of self--help legal kits or printed legal forms does not constitute the unauthorized practice of law as long as the seller provides the buyer no advice regarding which forms to use or how the forms should be filled out. Fifteenth ]ild. Dis. v. Glasgow, M1996--00020--COA--R3--CV (Tenn.App. 12--10--1999)(FN4)

The Florida court addressed this issue in an unlawful practice of law case, holding that ... a nonlawyer who has direct contact with individuals in the nature of consulta-tion, explanation, recommendations, advice, and assistance in the provision, selection, and completion of legal forms engages in the unlicensed practice of law; ... [W]hile a nonlawyer may sell certain legal forms and type up instru-ments completed by clients, a nonlawyer ''must not engage in personal legal assistance in conjunction with her business activities, including the correction of errors and omissions ... '' The Florida Bar, petitioner, versus We The People Forms and Service Center of Sarasota, Inc., et al., No. SC02-1675

Avoiding UPL: Representing Clients The question of whether someone may represent a client before a judicial or quasi--judicial board, such as an administrative agency, is a difficult one to answer. The difficulty is in knowing what the individual courts allow or will permit in individual circumstances. Some jurisdictions and administrative agencies do permit those who are not licensed or admitted to practice to appear in court or before administrative law judges or referees on behalf of clients. (Typically, these are law students acting under the guidance and supervision of an attorney under limited circumstances, but they may include paralegals.) Depending upon the jurisdiction, nature of the action, and level of the court, the paralegal might be permitted to appear with or on behalf of a client for example, before a Social Security Administration Administrative Law Judge. Who may represent clients is not a simple question for lawyers or paralegals. Representation of parties has traditionally been the role of lawyers. But even lawyers are not always permitted to represent parties. Appropriate admission to practice in the jurisdiction is typically a requirement. A lawyer admitted to practice in one state may not necessarily be admitted to represent the same client in another state. Lawyers admitted to practice in one jurisdic-tion, however, may ask the court of another jurisdiction for permission to appear in order to try a specific case. This is a courtesy generally granted for a single case, and in these situations, the trial attorney usually retains local counsel who will appear as well to advise on local rules and procedures. But the issue of out--of--state counsel is not without other complications. The complexity of the issue is raised in a portion of a report on the Unauthorized Practice of Law prepared by the Nevada Assistant Bar Counsel: The Bar has received complaints of out--of--state counsel participating in the pre[--]litigation mediation procedures. Writing notification letters, engaging in discovery, and appearing at pre--litigation mediations in a representative capacity is generally the practice of law. In Nevada there is no mechanism to obtain authority from the Supreme Court to appear in pre--litigation cases. Therefore, engaging in legal activities involving Nevada disputes and Nevada parties requires a licensed Nevada attorney ... (Unauthorized Practice of Law, David A. Clark, Assistant Bar Counsel, September 20, 2001)

ETHICS AND PROFESSIONAL RESPONSIB ILITY

If the representation of clients is not clear for members of the bar, it certainly is not clear for members of the paralegal profession. Generally, however, only duly admitted lawyers in the jurisdiction may represent par-ties. But this rule has been modified to allow law students in some states to represent parties in certain situations, generally under appropriate • • superv1s1on. In some states, a nonlawyer employee may represent a business in some proceedings before administrative agencies or before the minor judiciary, such as small claims courts. There is no uniformity of rules that dictates when nonlawyers may represent parties or before which agencies or courts nonlawyers may appear. Any appearance before a court must therefore be approached carefully. Even the presentation of a request for continuance of a case may be considered by some courts to be the practice of law. Appearance on be-half of clients before federal and state administrative agencies is no less lacking in uniformity than appearances before courts, but it frequently is easier to determine the ability to appear as a paralegal representing a client. Some federal agencies specifically permit nonlawyers to appear. Most no-table is the Social Security Administration, which allows representation by nonlawyers with few differences from representation by lawyers. The U.S. Patent Office also specifically permits nonlawyer practice. Some states, by specific legislation or administrative rule, also permit representation by nonlawyers.

Avoiding UPL: Guidelines The National Association of Legal Assistants, Inc. Model Standards and Guidelines for the Utilization of Legal Assistants provide guidelines on con-duct that may prevent UPL.

Guideline 1 Paralegals should: Disclose their status as legal assistants at the outset of any professional re-lationship with a client, other attorneys, a court or administrative agency or personnel thereof, or members of the general public ....

Guideline 2 Paralegals should not: Establish attorney-client relationships; set legal fees; give legal opinions or advice; or represent a client before a court, unless authorized to do so by said court; nor engage in, encourage, or contribute to any act that could constitute the unauthorized practice of law.

Guideline 3 Paralegals may perform services for an attorney in the representation of a client, provided: • The services performed by the legal assistant do not require the ex-ercise of independent professional legal judgment; • The attorney maintains a direct relationship with the client and maintains control of all client matters; • The attorney supervises the legal assistant; • The attorney remains professionally responsible for all work on behalf of the client, including any actions taken or not taken by the legal assistant in connection therewith; and • The services performed supplement, merge with, and become the attorney's work product.

35

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CHAPTER 2

ETHICAL OBLIGATIONS

2

LEARNING OBJECTIVE Describe the ethical obi igation owed by managing and supervising attorneys of appropriate hiring, delegating, and supervising members of the legal team.

Ethical behavior is expected and required of every member of the legal team: attorneys, paralegals, litigation support staff, information technologists, and outside consultants. What is sometimes not clear in the minds of nonlawyer members of the legal team is what ethical obligations they have and how the ethics rules are to be followed and enforced.

supervising attorney

The supervising attorney is ultimately responsible for the ethical conduct of everyone on the legal team. Under Rules 5.1 and 5.3, the supervising attor-ney is the one in charge of a case and those working on the case. The duty of supervision is required of partners and lawyers with managerial authority in the firm to ensure that other lawyers' conduct conforms to the ethical code. Direct supervising attorneys with authority over nonlawyers have an ethical obligation to ensure that those persons' conduct is compatible with the obli-gations of the lawyer. What happens in the handling and processing of a case by the legal team is ultimately the responsibility of the supervising attorney. Any ethical breaches or lapses are ultimately the responsibility of the attor-ney under the ethical guidelines and under common law principles of agency law. Each person working for or supervised by the attorney is in fact the agent of the attorney. Under fundamentals of agency law, the agents (includ-ing paralegals, legal assistants, clerks and legal secretaries, and the principalthe attorney) have a fiduciary relationship to each other. The agent must obey the reasonable instructions of the principal, and the principal is presumed to know everything the agent learns in the ordinary course of working for the at-torney on the case. The principal is responsible for the acts of the agent when the agent is acting within the scope of the agent's employment. The attorney is the one to whom the client looks for professional advice and a successful outcome of the case. The attorney will suffer any sanctions that result from members of the legal team failing to follow and enforce the ethical rules. Ethical obligations of lawyers are enforced by the court in the jurisdiction where the attorney practices or where the case is being tried. The supervising attorney of every legal team must follow the ethics rules and ensure that the members of the legal team follow the same rules. The obligation to ensure ethical conduct is that of the supervising attorney under the ethical obliga-tion to supervise all who work on the case for the attorney (under Rules 5.1 and 5.3). These rules are as much a part of the administration of justice as the rules of civil or criminal procedure and the rules of evidence. The bigger issues are: who has the responsibility to instruct the nonlawyer members of the legal or trial team, and who is responsible for ensuring their compliance? While it is ultimately the responsibility of the lawyer to supervise the nonlawyers' support staff (such as secretaries, investigators, litigation support staff, and technical consultants), in many cases, this obligation falls to the paralegal or litigation manager on the legal team. Each person working for or supervised by the attorney is, in fact, the agent of the attorney. The attorney is ultimately responsible for the ethical conduct of the agent--paralegal, and therefore, the paralegal owes a duty to the supervising attorney similar to that of the tra-ditional agent- servant relationship found in agency law that of a fiduciary

The member of the legal team to whom all others on the team report and who has the ultimate responsibility for the actions of the legal team.

agent A person authorized to act on behalf

of another.

pri ncipal One who authorizes another to act on his or her behalf.

fiduciary relationship A relationship where one is under a duty to act for the benefit of another under the scope of the relationship.

WEB RESORCES The entire set of Michigan's proposed standards for imposing lawyer sanctions is at the Michigan One Court of Justice website.

Duty to Supervise

ETHICS AND PROFESSIONAL RESPONSIB ILITY

37

obligation. Among the fiduciary obligations of an agent are the duty to exer-cise reasonable care, skill, and diligence. The agent also owes a duty of loyalty to the principal. This includes the obligation to act for the employer's benefit rather than for the agent's own benefit or the benefit of another whose interest may be adverse to that of the employer.

Ethical Guidelines and Rules Lawyers generally need to follow only one set of ethics guidelines. Although it may be a set enacted by the state legislature, it usually is one adopted by the Supreme Court of the state in which they practice. Unlike the ABA for lawyers, no single source of ethical rules is set out for the legal assistant. Absent a single unified body of ethical rules, legal as-sistants must follow state statutes and conduct themselves in conformity with the rules of professional conduct applicable to attorneys and with the ethics opinions of their professional associations. The two major legal assistant organizations that provide an ethical code for their members are the National Federation of Paralegal Associations (NFP A) and the National Association of Legal Assistants (NALA). Although legal assistants are not governed directly by the American Bar Association ethical rules, there is an intertwined relationship among the law-yer, the client, and the paralegal. What the paralegal does or does not do can have a real impact on the lawyer's duty and obligation to the client. Under the Model Rules, the lawyer ultimately is responsible for the actions of the legal assistant.

Conflict of Interest A conflict of interest exists if the representation of one client will be adverse to the interest of another client. Conflict of interest may best be explained by the adage that no one can serve two masters. If the master is entitled to com-plete loyalty, any conflict in loyalties presents a conflict of interest in which neither master can be certain of the loyalty of his or her servant. It's easy to see the conflict that would arise in a lawyer going to court to represent both the plaintiff and the defendant. Less obvious are situations in which the attorney represents two par-ties with a common interest, such as a husband and wife purchasing a new home. In most cases, the interests would be the same, and no conflict would exist. When these clients are seeking counseling for marital problems, how-ever, the conflict becomes more obvious as one of them seeks a greater share of the common property (or other rights), and the lawyer is called upon to give legal advice as to the individual rights of one of the parties. Finally, lawyers clearly cannot represent both husband and wife in court in a marital dissolution trial. The American Bar Association Model Rules of Professional Conduct provide a guideline in Rule 1. 7, Conflict of Interest: Current Clients, which provides in part that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer rea-sonably believes the representation will not adversely affect the relationship with the other client; and each client consents and confirms in writing after consultation. The essence of the rule is that of loyalty to the client. The 1981

3

LEARNING OBJECTIVE Understand the concept of conflict of interest for the legal profession. conflict of interest Situations where the interests or loyalties of the lawyer and client may be or may appear to be adverse or divided.

WEB RESORCES Ethical Perspective Review the most current version and comments to Rule 1 .7 on Conflict of Interest of the American Bar Association Model Rules of Professional Conduct at the American Bar Association website.

38 CHAPTER 2 version of the American Bar Association Model Code of Professional Responsibility provides in Canon 5: A lawyer should exercise independent professional judgment on behalf of a client.

The ethical considerations comment to Canon 5 states: EC-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromis-ing influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.

Clearly, a lawyer should not accept the employment if the lawyer's per-sonal interests or desires will (or if there is a reasonable probability that they will) adversely affect the advice to be given or services to be rendered to the prospective client. The information that may be considered to create a con-flict of interest is not limited solely to that of the attorney representing a client. It also includes the information held by another member of the legal team, including the legal assistant. The National Federation of Paralegal Associations Model Code of Ethics provides in Canon 1.6: A paralegal shall avoid conflicts of interest and shall disclose any possible con-flict to the employer or client, as well as to their prospective employers or clients.

The ultimate obligation to determine the conflict of interest of the para-legal or legal assistant rests with the supervising attorney. Standard proce-dure in law firms is to check for conflicts of interest within the law firm before accepting a new client or undertaking a new matter for an existing client. Just as other attorneys are asked to review lists of new clients and new matters, so must paralegals check to be certain they do not have a con-flict of interest. Conflicts of interest may arise for paralegals when they change from one employer to another. If the previous employer represented a client or han-dled certain matters for a client during the period in which the paralegal was employed, a conflict of interest may exist. A more difficult concern for the paralegal is the conflict of interest that can arise from a law firm's representa-tion of the paralegal' s family members and personal friends. Paralegals fre-quently refer family and friends to the attorney or the law firm where they work. The mere relationship or friendship itself might not create conflict, but in some cases could give rise to a claim of undue influence wherein the paralegal may stand to benefit from the action of the law firm. Examples are the drafting of wills and trusts in which the paralegal may be named as a ben-eficiary or instances in which the paralegal may be named as the executor of an estate or as a trustee receiving compensation.

Ethical Wall ethical wall An environment in which an attorney or a paralegal is isolated from a particular case or c lient to avoid a conflict of interest or to protect a client's confidences and secrets.

Law firms use the term ''ethical wall'' also called a Chinese wall (after the Great Wall of China) to describe an environment in which an attorney or a paralegal is isolated from a particular case or client to avoid a conflict of inter-est or to protect a client's confidences and secrets. By creating this boundary or wall, any potential communications, whether written or oral, are prevented

ETHICS AND PROFESSIONAL RESPONSIB ILITY

39

between members of the legal team handling a particular matter or client and the person with whom there may be a conflict of interest. In an age of consolidation of law firms in many areas, the number of indi-vidual employers has diminished while the number of clients has increased. As a result, professionals today may find themselves in firms that were on the op-posite side of cases in the past. Creating an ethical wall permits the professional to accept employment with the other firm. It also permits greater mobility by professionals, as they can go to a new firm in which there may be a conflict.

Freelance or Independent Paralegal Freelance or independent paralegals who work for more than one firm or attorney face the potential problem of conflict of interest. Special caution has to be taken to avoid accepting employment in cases where conflicts may exist. Freelance and independent paralegals are keenly aware of this and gen-erally take precautions to prevent conflicts. The law firms and attorneys for whom freelance paralegals work usually are also aware of the potential for conflicts. For example, a paralegal's accep-tance of employment at the retail store the firm is suing presents a conflict of interest. Knowledge of the strategy of the case would be of interest to the retail store employer. But divulging the information would breach the con-fidence of the law firm and the confidence of the law firm's client. Failing to disclose information to the retail store that directly affects its business would breach the duty of loyalty to that employer.

CONFIDENTIALITY For the attorney, the ABA Model Rules provide in Rule 1.6, Confidentiality of Information, that a lawyer shall not reveal information relating to rep-resentation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized. Confidential information is de-fined in the ABA Model Rules as ''all information, regardless of the source, gained in the representation of the client." Even information that may be published in the newspaper is confidential for the lawyer and paralegal work-ing for the client and may not be discussed with others. The newspaper ar-ticle may or may not be accurate, and any discussion with others could result in discussion of items not in the newspaper story; therefore, the lawyer or paralegal cannot confirm or deny anything. The duty of confidentiality is just that for the legal team: a duty. It is a duty imposed on the attorney and each member of the legal team working under the supervision of the attorney. It enables clients to obtain legal advice by allowing them to freely and openly give the members of the legal team all the relevant facts without fear of disclosure of these facts (except in limited situations, such as to prevent commission of a crime or to defend against a client's suit).

WEB RESORCES Ethical Perspective Review the most current version and comments to Rule 1.6 on Confidentia lity of Information of the American Bar Association Model Ru les of Professional Conduct at the American Bar Association website.

4

LEARNING OBJECTIVE Explain what is considered confidentia l under the ethical gu idelines. confidential ity Ethical obligation to keep client information confidential (not disclose) founded on the belief that clients should be able to tell their attorneys everything about their case so the attorney can give proper legal advice to the client.

5

LEARNING OBJECTIVE Explain the reasons for the obi igations of candor and fairness in litigation.

Candor and Fairness in Litigation

trier of facts

Litigation is the practice of advocacy, advocating a legal position to the court or trying to persuade a trier of fact to accept the facts as presented. It is the duty of the advocate to avoid any conduct that undermines the integrity of the process. The duty to the client to persuasively present the case is a qualified

The trier of facts decides what facts are to be accepted and used in making the decision. It is usually a jury, but may be a judge who hears a case without a jury and decides what the facts are and applies the law.

40

CHAPTER 2

candor Ethical obligation to not mislead the court or opposing counsel with false statements of law or of facts that the lawyer knows to be false.

duty, qualified by the ethical obligation of candor to not mislead the court or opposing counsel with false statements of law or of facts that the lawyer knows to be false. Without mutual respect, honesty, and fairness, the system cannot function properly. It is a simple ethical duty to competently research and present the current case and statutory law, even when the most current version is not favorable to the position taken. In the technology age, this duty requires making a complete search for ALL the law, both statutory enact-ments and case law, and not just the part that is favorable to the client's posi-tion. In an age of vast numbers of electronic cases, it is easy to lose track of a few laws or enactments or not run the search as professionally as possible. Not making the proper inquiry of the client's staff to find all of the law may lead to sanctions and even disbar ment.

Fairness to Opposing Party and Counsel Fairness in the practice of law has been an issue probably as long as there has been an adversarial justice system. A number of states have established professionalism commissions and committees. Attorneys are advocates for their clients, and they occasionally forget that the purpose of the legal system is justice for all. The ethical rule of fairness to opposing counsel and parties is an attempt to set the guidelines to ensure that justice is done even if one's client loses the case. Each side is expected to use its best skills and knowledge WEB RESORCES Contrast and compare the Colorado Supreme

Court Rules of Professional Conduct at the Colorado Bar Association website with the American Bar Association Model Rules of Professional Responsibility at the ABA website and the ethical rules in your jurisdiction.

ETHICAL Perspectives COLORADO RULES OF PROFESSIONAL CONDUCT RULE 3.3. CANDOR TOWARD THE TRIBUNAL a. A lawyer shall not knowingly: 1. make a false statement of materi al fact or law to a tribunal or fai I to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or witness cal led by the lawyer has offered materi al evidence and the lawyer comes to know of its fal sity, the lawyer shal I take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is fal se. b. A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding sh al I take reasonable remedial measures, including, if necessary, disclosure to the tribunal. c. The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1 .6. d. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

ETHICS AND PROFESSIONAL RESPONSIB ILITY

and to present fairly its position in the form of evidence for the trier of fact to determine where the truth lies. Destroying, falsifying, or tampering with evidence destroys the fabric of the system. If people lose confidence in the system because of these unfair tactics, the system breaks down. Just consider the criminal cases where the prosecutor does not turn over, as required, exculpatory evidence that might indicate that the defendant is innocent. The obligation of the supervising attorney to the court and to the other side may not only extend to the legal team but also may ensure that the cli-ent and the client's staff fully comply with the rules of court. Sanctions for failure to properly supervise can come from two sources: the court hearing the under1ying action (as in the Qualcomm Attorney- Client case below) and the attorney disciplinary agency. The court typically punishes this sort of misbehavior with monetary sanctions, the purpose of which is to compen-sate the other side for the time and effort they have expended or will expend because of the discovery abuse. The attorney disciplinary agency's punish-ment can include, in extreme cases, disbarment or suspension from practice before the court for a period of time, or in less extreme cases, public or private censure. In addition, under some circumstances, ''unfair'' litigation tactics may result in a suit for malpractice filed by the client against the at-torney and the law firm. As noted in the opinion of the magistrate judge in the Qualcomm v. Broadcom case: ... Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client's or attorney's discovery obligations. Similarly, agreeing to produce certain categories of documents and then not producing all of the documents that fit within such a category is unaccept; able. Qualcomm's conduct warrants sanctions .... C. Sanctions The Court's review of Qualcomm's declarations, the attorneys' declarations, and Judge Brewster's orders leads this Court to the inevitable conclusion that Qualcomm intentionally withheld tens of thousands of de; cisive documents from its opponent in an effort to win this case and gain a strategic business advantage over Broadcom. Qualcomm could not have achieved this goal without some type of assistance or deliberate ignorance from its retained attorneys. Accordingly, the Court concludes it must sanction both Qualcomm and some of its re; tained attorneys .... QUALCOMM INCORPORATED, v. BROADCOM CORPORATION, and RELATED COUNTERCLAIMS. Case No. 05cvl958;B (BLM)

Duty to Report Unethical Conduct Lawyers have an ethical duty under Rule 8.3 of the Model Rules of Professional Responsibility to report other lawyers' violations of the ethics rules to the appropriate professional authority in the state. Lawyers must have firsthand knowledge of the violation of the rules of ethics that raises a substantial question as to another lawyer's honesty, trustworthiness, or fit-ness as a lawyer. This does not mean that a lawyer may make a report of ethics violations to gain a competitive advantage in a civil case. A groundless accusation of unethical conduct to gain an advantage in a civil case would itself be unethical. In practice, it may be a close call. A lawyer may have a duty to report an adversary who files a motion known to contain false factual allegations.

41

exculpat o ry evidence Evidence that tends to prove the innocence of the accused or prove the facts of the defendant's case.

WEB RESORCES Review the current language of the Federal Rules of Civil Procedure Rule 26 (one source of the ru le is the website of the Corne II Law School Legal Information Institute and the related Federal Rules of Criminal Procedure Rule 16 at the same website).

42

CHAPTER 2

CONCEPT REVIEW AND REINFORCEMENT

ethics

28

Model Rules of Professional Conduct 28 unauthorized practice of law (UPL) 29

supervising attorney

36

agent 36 principal 36

38

confidentiality trier of facts

fiduciary relationship conflict of interest

ethical wall

37

36

candor

39 39

40

exculpatory evidence

41

ETHICS AND PROFESSIONAL RESPONSIBILITY Introduction to Ethics and Professional Responsibility

Ethics is the set of minimally acceptable standards of conduct in a profession. Ethical guidelines are enforced by the court in the jurisdic-tion where the attorney practices or where the case is being tried. The supervising attorney of every legal team must follow the ethics rules and ensure that the members of the legal team follow the same rules as the supervising lawyer.

Regulation of the Practice of Law

The practice of law is regulated to protect the public from incompetent and unscrupulous practitioners.

The Paralegal and Licensing

With a few exceptions, there is no state licensing of paralegals.

State Regulations

Some states, such as California, have regulations defining who may identify themselves as a ''paralegal." A recent development is the Limited License Legal Technician. In other states, such as Florida and Ohio, the state bar association has adopted rules defining who may use the title ''paralegal.''

Federal Practice

Under federal regulations, nonlawyers may in some areas, such as Social Security and patent law, represent individuals and appear before agencies.

Penalties for Unauthorized Practice

Most states provide criminal penalties for the unauthorized practice of law.

Avoiding UPL

A common thread of UPL is not holding oneself out as a lawyer or giving advice when legal rights may be affected. This includes prohibi-tions against filling out legal forms and representing clients in court.

Ethical Obligations

Every member of the legal or trial team has an obligation to act ethically.

Duty to Supervise

All lawyers and partners in law firms are required to supervise everyone over whom they have supervisory authority. All ethical breaches by mem-bers of the legal team are ultimately those of the supervising attorney.

Ethical Guidelines and Rules

For lawyers in most states, the ethical guidelines are based on the American Bar Association's Rules of Professional Conduct, which provide a fairly uniform set of rules across the country. There are no mandatory rules for paralegals except as an obligation of membership in national paralegal organizations. (continued)

ETHICS AND PROFESSIONAL RESPONSIBILITY

43

Conflict of Interest

A lawyer should not accept an engagement (representation) if the lawyer's personal interests or desires will (or if there is a reasonable probability that they will) adversely affect the advice to be given or services to be rendered to the prospective client.

Ethical Wall

An ethical wall is an environment where a person is isolated from access to information about a client or case.

Freelance or Independent Paralegal

A freelance or independent paralegal may work for more than one firm or attorney, thereby creating the potential for a conflict of interest.

Confidentiality

Every member of the legal team must understand the ethical obligations of the legal profession to protect the communications received from clients.

Candor and Fairness in Litigation

A lawyer has an ethical duty (candor) to not mislead the court even when the most current version of the law is not favorable to the client's legal position. All members of the legal team are required to make accurate inquiry and present the most current information.

Fairness to Opposing Party and Counsel

Lawyers are expected to use their best skills when presenting a case but should avoid destroying or tampering with evidence or ignoring rules of court.

Duty to Report Unethical Conduct

Lawyers have an ethical duty to report other lawyers when they have firsthand knowledge of the violation of ethics rules.

REVIEW QUESTIONS AND EXERCISES 1. What is ethics? 2. What is the purpose of the confidentiality rule in the legal setting? 3. Can the confidentiality between attorney and client be lost? 4. What ethical guidelines, if any, does your state follow? 5. What is the ethical obligation of a paralegal to the firm's client? 6. What is the ethical obligation of a paralegal to the court? 7. What is the ethical obligation of a litigation support staff member to the client? To the court? Of a litigation support person from an outside firm or consultant? Explain. 8. Why is conflict of interest an issue for the legal team?

9. What are the ethical issues for a law firm using outside computer or technology consultants? 10. Do the ethical rules of fairness prevent lawyers from aggressively advocating a client's position? 11. Why would a partner in a law firm be required to supervise the other lawyers in the firm? 12. How can members of the legal team dem-onstrate that they have been adequately supervised? 13. Prepare a brief note to a supervising attorney on why a failure to properly supervise could result in a problem for the attorney and the firm. 14. Prepare a memo to the supervising attorney, who has just been admitted to practice in your jurisdiction. Write about the jurisdiction's con-tinuing legal education requirements, including any ethical education elements.

44 CHAPTER 2

BUILDING YOUR PARALEGAL SKILLS INTERNET AND TECHNOLOGY EXERCISES 1. Find a copy of the most current version of the Model Rules of Professional Conduct pub-lished by the American Bar Association. 2. Use the Internet to locate the most current ver-sion of the ethical rules used in your jurisdiction. Save the website address for future reference.

3. Find ethics opinions or sources of information on ethics in your jurisdiction. 4. Use the Internet to locate your state's statute on the unauthorized practice of law. How is UPL treated in your state?

CIVIL LITIGATION VIDEO CASE STUDIES Opening Scenario Video Case Study: Confidentiality Issue: Public Information

The law firm has a case that has received coverage by the local press. Two paralegals from the same firm are on a coffee break at a public cof. . fee shop. One of the parale-gals is working on the case; the other is not assigned to the case but has some interest in it. After watching the video at www.pearson.com/ goldman-civil-litigation, answer the following • questions.

1. Does the legal team working on a case have a duty to remain silent, even when information about the case has been made public? 2. If incorrect information about a case has been made public, can the members of the legal team correct any misinformation?

3. Can confidential information about cases be shared among members of the same law firm? 4. What is the difference between confidentiality and attorney- client privilege? Confidentiality Issue: Family Exemption

While having coffee with her mother, a paralegal dis-cusses a case on which she is working.

After viewing the video at www.pearson.com/ goldman-civil-litigation, answer the following • question.

1. Is there an exemption that permits a member of the legal team to discuss cases with family members?

CHAPTER OPENING SCENARIO CASE STUDY Continue to maintain a time log of your activity in the course.

BUILDING YOUR PROFESSIONAL PORTFOLIO AND REFERENCE MANUAL

/J/1 /}JI •

CIVIL LITIGATION TEAM AT WORK See page 18 for instructions on Building Your Professional Portfolio and Reference Manual. Policy

1. Prepare a script to use when a client, friend, or family member asks for legal advice.

2. Prepare a script to introduce yourself and define for the client or witness your role and limitations as a paralegal. 3. Compile supervising attorney contact informa-tion and notes on when he or she is available.

ETHICS AND PROFESSIONAL RESPONSIB ILITY

4. Compile procedures for determining who is the supervising attorney and when the supervising attorney is to be contacted. 5. Prepare a sample firm policy on discussion of cases among the litigation team, and oth-ers in the law firm not working on a particu-lar case. 6. Prepare a sample firm policy for ethics training for the various members of the litigation team. 7. Prepare guidelines to ensure all staff members are properly supervised. 8. Describe procedures to protect confidential information and litigation work product.

45

Procedures Obtain your local jurisdiction's continuing legal education requirements for: 1. Attorneys 2. Paralegals

Contacts and Resources For 1. 2. 3. 4.

your state and local bar association, obtain Mailing addresses Phone and fax numbers Web and e--mail addresses Web address of your jurisdiction's version of the Model Rules of Professional Conduct 5. Web address of ethics opinions for your jurisdiction

VIRTUAL LAW OFFICE EXPERIENCE

ALTERCATION ON THE SCHOOL BUS VIDEO: PARENT AND CHILD CONSULT THE LEGAL TEAM A student accused of injuring a school bus driver and assaulting another student on the school bus is meeting with his parent and the lawyer supplied by their home-owner's insurance company. During the meeting, while the son is being interviewed by a paralegal in another room , the parent confides confidential information to the lawyer. The son also makes confidential statements to the paralegal.

After watching the video at www.pearson.com/goldman-civil-litigation, answer the following questions. To: Paralegal Intern From: John Morris, Esquire Case Name: School Bus Altercation Case Re: Initial client's interview 1. To whom does the attorney- client privilege belong? 2. Does a minor have an attorney- client privilege that requires withholding confidential information from his parent? 3. If the insurance company is paying for the defense, is it entitled to know the information the minor considers privileged?

LEARNING OBJECTIVES After studying this chapter, you should be able to: 1. Explain the use of technology in civil litigation and case management.

2. Describe the function and elements of electronic database software.

3. Explain how case management software systems can enable the legal team to work on cases more efficiently.

4. Explain the reasons for the use of software for managing I itigation cases.

5. Explain the role of office management software in the operation of the law office.

ana

CHAPTER

OPENING SCENARIO With two separate and growing offices, it was clear that a practices and procedures manual dealing with technology issues in civil litigation was essential. The two offices had to work together on many of the cases because each office, alone, lacked the resources to hire additional staff or attorneys. Managing the staff and office administration for both locations from the suburban office was a concern for the office manager/paralegal. She began to realize that everyone was depending on her to coordinate the activities and operations. When she returned to the office after attending an advanced paralegal education seminar, she understood what the speaker meant when he referred to people in her position as the critical ''paralegal portal'' in the firm. Her job was to maintain relationships with clients by keeping them informed; facilitate communication among the lawyers, opposing counsel, staff, and clients; and ensure that the litigation team collaborated in an efficient, effective manner. Organizing information on cases and litigation was critical. With the remote operations, each member of the litigation team had to have a secure method to access critical confidential information at any time from either office or even from the court or at home. Ethical issues of conflict of interest were also becoming a concern as new clients came in, the practice grew, and new consultants and legal staff from other law firms were hired to work on the cases. It was obvious that she could no longer rely on a paper system; going paperless in the offices and using software to manage the information and cases were now necessary, if for no other reason than the time and billing functions were now more essential to the firm's cash flow needs. Bills had to be accurately prepared and sent out on a regular basis.

OPENING SCENARIO LEARNING OBJECTIVE Describe the use of technology in managing a legal practice efficiently and effectively.

VIDEO INTRODUCTION

Litigation management and technology After watching the video at www.pearson.com /goldman--civil--litigation, answer the following questions: 1. How has technology changed the way cases are presented? 2. Why does a paralegal need to understand technology?

47

48 CHAPTER 3

INTRODUCTION TO LITIGATION MANAGEMENT AND TECHNOLOGY Before the introduction of computers, litigation was defined by the ability to present cases using verbal communication skills, which were occasion-ally supported by hard--copy exhibit displays. As the world has changed and technology has become an integral part of daily life, those who litigate cases must also integrate computer technology into the handling and presenta-tion of cases. Judges and juries have come to expect more than just classic legal oratory; they expect to see cases presented using computer monitors and video displays not unlike what they see on television. The underly-ing sources of evidence have shifted from a paper trail of letters and docu-ments to an electronic trail of e--mails, electronically stored information, and lnternet--available media. The tools and the skills necessary to be a success-ful litigator or litigation paralegal have changed. With the increased use of electronic devices for everything from communications to data storage and transmission, the volume of information has also increased exponentially. Paralegals are today charged with finding, protecting, storing, retrieving, and producing evidence and information with a few clicks of a computer key-board and mouse. Whereas in the past, everything about a case could be found in the case file boxes in the office of the supervising attorney or his paralegal, today the case file information may be stored on a laptop, a file server in the office, or using the '' cloud'' in a remote data center. Success in the field of litigation requires an understanding of the tools and the process of using technology. Older medical records and business records are still in paper form or are in photographic forms like microfilm and microfiche and have not been converted to electronic storage. However, these older storage methods are gradually being phased out in most cases in favor of electronic storage. Until recently, uncertain that the ''new'' technology worked, many businesses and law offices kept both paper and electronic versions. The paper copy was the final version and the electronic file was a copy for use as a template or for making changes to the ''final'' paper document. Until recently, paper copies were the dominant items requested in discovery. Responses to interrogatories frequently came with paper records attached and only rarely with any electronic response. Many cases today still re-quire access to paper records. For example, a medical malpractice action filed today may have its origins ten to eighteen years ago, when the plaintiff was a child and the statute of limitation extended until the minor reached the age of majority. At that time, hospitals and doctors kept records in paper form or converted them to a paper substitute, such as microfilm or microfiche. Other examples are product--defect or liability cases such as the tobacco industry litigation, which started before records were rou-tinel y kept electronically.

1

LEARNING OBJECTIVE Explain the use of technology in civi I I itigation and case management.

TECHNOLOGY IN CIVIL LITIGATION The increased use of technology and computers in the law office, the court system, and the courtroom has changed the way many traditional law office functions and procedures are performed. Computers and the Internet are

LITIGATION MANAGEMENT AND TECHNOLOGY

49

increasingly used, not just for traditional document preparation, but also for maintaining client databases, keeping office and client accounting records, communicating, legal and factual researching, filing documents with the court, sharing files with other counsel, producing documents in discovery, and presenting during trial. Computers are being used with greater frequency to share informa-tion in digital format by the use of the Internet among remote offices, courthouses, government agencies, and clients. The trend is toward elimi-nating paper in the law office through the use of computer technology and software.

Online Data Storage and Collaboration Members of the civil litigation team frequently find themselves working from locations outside the traditional office. In some cases, the legal team is composed of members who work from home, are located in different of-fices of the firm, or are members of different law firms located in different parts of the country or the world. Each member of the team, whether in the office, in depositions, or in court, may need access to the case data or elec-tronic files. One solution is to have all of the files stored electronically in an electronic repository on a secure, protected file server to which everyone authorized has access over the Internet. The use of a secure repository that is accessible over the Internet by authorized users is sometimes referred to as cloud computing. Members of the team may use the Internet to work collaboratively in real time, using online collaboration systems that allow each person to see the documents and, in some cases, each other, and to make on--screen notes and comments. A number of companies provide services and software for converting case documents to electronic format and storing them on a se-cure server. Collaboration software is provided for the individual members of the legal or litigation team. The litigation team must address technol-ogy and its impact on how documents are created, stored, and destroyed by clients. As a result of the rules on electronic discovery that were first introduced in 2006 with subsequent amendments by the federal courts, the team must also address the impact that actual or potential litigation has on the rules for document retention and preservation in order to avoid claims of spoliation of evidence. State courts are also looking at these issues, and many have implemented or are implementing their own rules, frequently fashioned after the federal rules. Among the important rules and case law decisions are those directing counsel to ensure, by putting a litigation hold on potential evidence, that clients do not destroy electronically stored documents. Courts are now im-posing the obligation on the litigation team to ensure that clients preserve evidence. With the potentially massive delivery of documents in electronic form comes the concern that in delivering vast amounts of electronic documents, some confidential or attorney- client privileged material may inadvertently be produced to opposing counsel. These documents may be accidentally de-livered to the opposing side even after review for privileged or confidential material. Because reviews are frequently performed by paralegals, it is im-portant for them to know the rules of evidence and ethical responsibilities

electronic repository A secure, protected file server to which everyone authorized has access over the Internet.

cloud computing The access over the Internet of a secure repository by authorized users.

on Iine collaboration Members of the team working collaboratively using online software that allows each person to see the documents, and in some cases, each other, and make on-screen notes and comments.

spoliation of evidence Destruction of records that may be relevant to ongoing or anticipated I itigation, government investigation, or audit. Courts differ in their interpretation of the level of intent required before sanctions may be warranted.

Iitigation hold A process whereby a company or individual determines an unresolved dispute may result in litigation and, as a result, documents should not be destroyed or altered.

50 CHAPTER 3

VIDEO ADVICE FROM THE FIELD _ _ _ _ _ _ _ __ INTERVIEW: ROLE OF PARALEGAL IN LITIGATION Charlotte Harris, Manager, Litigation Support, Hess Corporation. A discussion of the role of Iitigation support personnel in the litigation process.

After watching the video at www.pearson.com/ goldman-civil-litigation, answer the following questions.

1. Why is it frequently necessary to have a third party at the meet and confer between the trial attorneys? 2. What is the role of the forensic expert in a trial? 3. What is the role of litigation support in educating others?

surrounding the issue of confidentiality and attorney- client privilege and the steps to take to retrieve the information and documents. No longer can the legal team ignore the role of technology in use by cli-ents or in litigation, whether the legal team is a sole practitioner with just a legal secretary or a mega--member international law firm with in--house techni-cal support. Everyone on the legal team must understand the role of the vari-ous technologies in counseling and representing clients.

ELECTRONIC DAT ABASE BASICS

2

LEARNING OBJECTIVE Describe the function and elements of electronic database software.

Databases are programs used to store information. After word process-ing programs, database programs are the most frequently used type of computer program. The advantage of a database program is its ability to search for individual or groups of words or numbers, to sort the results in some meaningful way such as by date, and then to show the results on a computer screen or in a hard--copy printout. For example, demo-graphic data collected may be sorted by zip code, which by itself is not a very meaningful result. But adding to this result a search by zip code and income, sex, and number of children provides a good picture of the demographics of an area, such as the surveys conducted by the Census Bureau every ten years. Electronic discovery software permits documents to be entered into a database and stored by key terms, phrases, or other criteria that then can be sorted to find patterns and connections. With a few keystrokes, lists of documents can be prepared for manual review, like an Internet search that produces a list of locations to check for desired content or products. In addition to the obvious use of avoiding accepting representation of a client with a potential conflict of interest, the information in a database of contacts and clients may be used in firm public relations and marketing activities. Many firms use the information to send holiday, birthday, and anniversary greetings and to collect information on updates of specific changes in the law for which a client has previously consulted the firm.

Data Repositories A database program is a repository of information of all types that can be sorted and presented in a desired, meaningful manner. The word ''database'' is just computer talk for a collection of information. For example, a Contact

LITIGATION MANAGEMENT AND TECHNOLOGY

51

Database in a case management program is nothing more than a collection of information about people: their names, phone numbers, addresses, and maybe birthdays or other related information. Besides basic contact information, other information can be collected such as occupation, children's names and dates of birth, or any other co1nbi, nation of information. In pre,computer days, databases were represented by a box or boxes of 3 X 5 cards with the information about clients or important dates. These were the heart of the conflict of interest or deadline databases. The date or calendar database was checked daily and a list made up for mem, bers of the legal team of such things as deadlines, statutes of limitations, and appointments. Conflicts of interest were checked in the same way, via a search of the cards maintained alphabetically in the boxes. In some offices, a card was prepared for all opposing parties. Each of these "decks of cards" was a database. The electronic database is nothing more than a version of the cards in the boxes-except that more information can be automatically checked more quickly and more accurately. This means no more misfiled cards out of al, phabetical order. A database is essentially an electronic card with information that can be searched using a set of things to look for and presented in a pre, defined manner or report. When information about a person is needed, the report showing the infor1nation is compiled by asking the database program to look up the person's information and show it on the computer screen, or in a printed format called a report. Any combination of information, or que, ries, can be requested for a report about a single person or a list of all people or contacts with the same information such as zip code; or a more detailed report can be prepared combining specific items, such as zip code and male or female, with a birthday before or after a certain date. Exhibit 3.1 shows an intake template and a contact form for the input of information into a contacts management database for one record. One of the advantages of the modern database is its ability to search across a number of different sets of

Exhibit 3.1 An intake templ ate and a contact form ~I~

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52

CHAPTER 3

Exhibit 3.2 Parts of the database: table, field, cell, and record This entire group of records represents the SalesDeptContactl nfo table

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·...----"""

The category First Name is a field

Type a question for help

.t!e p

0!1 Contact ID

*

FQrrnat

!

City St. Louis Sorinafield Topeka St Louis Tulsa Toledo LaPorte

•

_ & X

! State ] Business Phone : MO IL KS MO

(612) 444-1236 1888) 234-6983

(888) 988-2678

OK

(877) 867-7656 (800) 864-2390

OH

(.343) 333-3333

IN

(888) 238-2123

A cell is the box containing the information All the information for Douglas Seaver represents one record

Source: Screenshot "Electronic Databases Use Standard Terminology to Describe Parts of the Database: Table, Field, Cell, and Record." Used by permission of Microsoft Corporation.

information and sort the data according to a predefined set of criteria. Some have likened the World Wide Web to a big database that can be searched using a search engine. The database is the place where information is stored until a request is made for a report showing some or all of the information in a certain format or appearance.

Navigating Electronic Databases Electronic databases use standard terminology to describe parts of the data-base: table, field , cell, and record, as shown in Exhibit 3.2. Databases are collections of tables. Tables contain fields of informa-tion (data); a field is one type of information, such as last name. A record is all the information about one item or person; for example, Exhibit 3.3 shows a record of information for one person. Think of the database as being a file cabinet; a table being a file drawer for a specific set of in-formation like business contacts; the record being the individual file for each contact; and the field being individual pieces of information about the person. Microsoft Access is a database widely used because of its inclusion with the Microsoft Office Suite or some versions of Office 365. The Microsoft Access layout shown in Exhibit 3.4 is one way of presenting the basic elements of a database the fields, records , and cells. The same elements may appear in a different layout, such as the Contact Details in Exhibit 3 .3.

Tables Databases can and frequently do contain two or more tables. For example, a database used in a legal office may have one table for employees of the firm, another for clients of the firm, a third for opposing attorneys, and a fourth for the opposing parties in cases the firm has handled.

LITIGATION MANAGEMENT AND TECHNOLOGY

53

Exhibit 3.3 Contact details ~ Contact Details

Fir~t Nan1e La~t

Na,ne

Steven

Category

Business

Rich

E-mail

[email protected]

Company

Michigan Poverty Law Progre,m

EJ

Job Title

Technology Staff Attorney

E]

Web Page

+I · tmages Notes

Phon@ Numb@rs Business Phone

555) 123-0000

Home Phone

(555) 321-9876

Mobile Phooe

(SSS) 654-5678

Fax Number

SSS) 999·1234

Addr@ss

: j Ciiek lO ~Aap

Street

611 School Road Suite 4A

City

Ann Arbor

State/Province

Mi

Zip/Postal Code

48104-3000

Country/Region

United Stat es of America

Source: Screenshot "A Record is All the Information About One Item or Person." Used by permission of Microsoft Corporation.

Reports Reports present the data from the database in an organized presentation. A report may present just the information from one table , such as employee birthdays. Frequently, a report shows the outcome of searching multiple ta-bles and displays the relationships among the information and data from the different tables , such as a report of the employees that have ever worked for an opposing counsel in a case against a client.

Exhibit 3.4 Record for business contact A d

•

T it.er

,.,.n,ro .

I /, >I

OPTIONS

SDOC_NO

10

FROM

Kirstin Boettcher < boettch [email protected]>

TO

Bill Williams 111 < bill.v.;lliams. I [email protected] >

----------~

D A TE

24/ 04/ 2001

nME

22 :42 : 00

ORIGIN

WILLIAr.1S-V/3

SUBJECT

Roosevelt stuff

FOLDER

\ Exfvle rge - \.'/illi a ms I I I , Bill\Sill

MESSA CEID

------~

7S8b3 1d0db7d0246879a52e83fed9e07013e 2d@nap-dx-msmbx0 1 v .corp.enron.com

BODY

{\rtf l \ ansi\ansicpg l 252\ deffO\ deflang 10 33{\fonttbl{\fO\fmode rn Courier; }{\f l \ fsv.;ss\ fcharsetO Arial :}} {\colortbl ; \ redO\ green O\blue O;} \vi evikind4\ ucl \ pard\sl240\slmult0\ cfl \ fO \ f:;.20 Hi 6ill •\par \ par Thank you 'or returning the paperv,40rk to me . They are in stalling hardvioods\ pa r on 4th floor right nov,. (l vtas dovll'\ there this am). The Lobby is \ par complet.,. ...Just some touch up n eeded. Ele v ator ,sup&. running .\par \ par At thi!! t i me, v,e need you to identify a Lender and get yourse lf pre·approved\ par a n d h a v e t h e Lender pre- approv e the proJect. Because it is a con v ersi on, \ par some Lenders have trouble doing t h e loa n. Jerry Vlilson of Pacific Northv.-est \ par r.1ort9age, Inc h as pre-approved this pro1e-ct and ,s doing a number of other\ par loans at the Roosev e lt.\par I n case you'd like his number It is: 503·224·4564 or pager 503·224·4308\ par (Tell him you are calling re: Roosevelt).\par \ par Let me knov, v,+uch lende r you a re viorklng vnth and l v,tll 91ve t h em the\ par necessa ry info about the buildin g , \ piir \ par T h a nks, \ par Kirstin Boettch er for Jeff Burg hart P .C .\par The Hasson Company R e altors\ pa, 503- 735-4884\ piir \ par PS Did n't s ee y a vialking for MS• :·) Late n ight, he he h e \ par J/K\par \ par \ pard\ tl \ fs 18\ p.ir

nXT w

'

jl # ~ ., SHO. : '. . ORD MARKING

Source: iCONECT Development, LLC. All rights reserved.

55

56

CHAPTER 3

The National Archives provides access to multiple online databases as shown in Exhibit 3 .8.

Database Issues in Litigation The litigation team is the interface between the client, the opposing side, and the court. Discovery requests are filtered through counsel. It is the trial coun-sel' s duty to obtain accurate responses to legitimate discovery requests for electronic discovery. Trial counsel and the litigation team must know enough about the client's system for creating and storing and ultimately deleting elec-tronically stored information to avoid claims of dilatory conduct and a lack ofcandortothecourt.

Searches Constructing the Query Anyone who has ever conducted a search on the Internet using a single word or even a combination of a few words knows that such a search may not produce the desired results. Searching legal databases is also frequently frus-trating if the exact, proper term is not entered as used in those databases. Searching electronically stored information when there are no universal, common terms or phrases such as the West Keywords can be difficult. For this reason, a number of new search methods have been developed and con-tinue to be developed and refined to overcome the limitation of the tradi-tional Boolean search using words and connectors like AND, OR, and NOT. Some database software search engines can isolate and identify previously unknown patterns or trends in large amounts of data. Conceptual searching, a type of search that looks for meaning, not specific letters in words, looks for information that is conceptually similar to the words in the search query. For example, a conceptual search for the phrase ''breakfast foods'' returns items of foods eaten for breakfast. One-- or two--word conceptual queries rarely return good results, whereas more detailed queries, such as ''what is eaten at a Sunday Mother's Day brunch," would result in additional, related items like ''champagne," the mixed drinks served, and, potentially, all the other items served at a large buffet.

The Reality of Using Databases The reality is that legal team members, lawyers, paralegals, and legal assistants rarely create their own databases. In some cases, a simple database of a single table might be used to sort or organize some information, such as the client list or conflict list. So why do we need to learn about databases? While members of the legal team may not actually create their own databases, they do use them all the time. Virtually every law office's specialty application program for managing the office, cases, or documents in litigation is a database. Software vendors have created applications for the legal community. They have custom-designed the Form Views for input of information and the query forms for generating the desired reports, and set up the search and presentation al-gorithms (formulas for searching). When special applications are required, many of the software vendors will create custom tables and report genera-tors, such as those for a particular area of practice, like estates.

Exhibit 3.8 National Archives Website Blogs · Bookmark/ Share · Contact Us

Search Archives.gov

NATIONAL ARC 'H IVES

Research in the National Archives Catalog

Other Online Research Tools

-• _... ...

• Search the Catalog • Advanced Search • Search Tips • Contribute/ Citizen Archivist

• Guide to Federal Records • Online Tools/ Ways to Search Online • Access to Archival Databases (AAD)

• Catalog Newsletter

Search

Research News Hoover Film Footage Likely First White House Color Home Movies - March 23, 2017 National Archives Digital Records Help Irish Author Write History Books - March 16, 2017

• Microfilm Catalog

Inclement Weather Alert: In the event of inclement weather, check our operating status, Face book, and

• Free Databases at NARA facilities

Twitter · March 14, 2017

Research Events

Research Your Ancestry

Research Military Records

Research a Specific Topic

Learn about our records and

Research military records at

Perform research on people,

how to use them to research and

t he National Archives from the

places, events and other popular

discover your family history.

Revolutionary War to the present.

topics of interest.

Family Activities- Articles of Confederation - March 27, 2017, 10:00 am EDT Family Activities- Articles of Confederation • March 28, 2017, 10:00 am EDT Family Activities- Articles of Confederation - March 29, 2017, 10:00 am EDT

Most Requested Declaration of Independence The Constitution The Bill of Rights

New to Archival Research? Source: National Archives Database.

VI

.......

~

Research in Person

Order Copies of Records

....

Browse Online .,, .. "'!Ff ... Exhibits ,~

Wortd War II Photos Census Records

58

CHAPTER 3

Knowing what a database is and the associated terminology makes work-ing with the software developer, in--house IT professional, or outside con-sultant easier and more effective in obtaining what is needed, wanted, and possible. Knowing how a database works and is organized makes the software applications that are based on database designs easier to use and work with. As electronic discovery becomes a more significant part of litigation, data-base programs will play an increasing role in the discovery process. In--house and electronic discovery vendor programs use databases to perform the func-tions of search, analysis, and reporting. Members of the litigation team must have a solid understanding of database operations and terminology to be able to communicate with the technical and litigation support members of the litigation team as well as to avoid claims by the court of lack of competency in the e--discovery process.

ORGANIZING AND MANAGING CASE FILES

3

LEARNING OBJECTIVE Explain how case management software systems can enable the legal team to work on cases more efficiently.

tangib le evidence Physical objects.

trial notebook Summary of the case, usually contained in a tabbed, three-ring binder with sections such as pleadings, motions, law, pretrial memo, and witnesses.

Effectively managing a case may involve reviewing, sorting, and marking for identification hundreds or even thousands of documents, photographs, and other graphics. Careful tracking and handling of evidence should start at the beginning of the case. Good case management requires a thought-ful process for storing, handling, examining, evaluating, and indexing every page. In the computer age, case management includes making deci-sions about the appropriateness and potential use of electronic display technologies (as well as traditional paper exhibit presentations) in court. Tangible evidence physical items such as defective products in a strict liability action or an automobile in a motor vehicle accident may have to be obtained and preserved for examination by expert witnesses or for use at trial. There are almost as many different approaches to setting up case files and managing cases as there are legal teams. One of the traditional approaches includes the case notebook, or case trial notebook. Summary information about the case is maintained in a notebook with tabs for each major activity, party, expert, or element of proof needed, as shown in Exhibit 3.9. With the use of a trial notebook comes the responsibility to maintain the case file and file boxes or file cabinets in which the hard copies of docu-ments, exhibits, and physical evidence are maintained. If only one trial or case notebook is kept for the team, someone on the litigation team must take responsibility to be certain that there is no duplication of effort and that the most current information is entered. When multiple copies are used, each

Exhibit 3.9 Tabs for the case notebook and the trial notebook PROOF

PRETRIAL MOTIONS

REBUTTAL ....... CROSS-EXAMINATION

~

NOTES DURING TRIAL

-

POSTTRIAL MOTIONS

RESEARCH-LAW

RESEARCH-EVIDENCE

PLEADINGS AND ISSUES

FACTS ANO THEORIES

DIRECT EXAMINATION

EXHIBITS

WITNESSES

OPENING STATEMENT

COURT FINDINGS AND JUDGEMENT

JURY MATTERS

ANAL ARGUMENT

~

JURY INSTRUCTIONS

THINGS TO CO

-

JURY SELECTION MOTIONS CURING TRIAL

......

-

LITIGATION MANAGEMENT AND TECHNOLOGY

Exhibit 3.10 Case organization flowchart using LexisNexis® CaseMap™

ase

oint

oca

•

ase

___

\

SIS ___,.

.,.._ ·---

,..... •

Exhibits, Documents

-· --

.

Investigator: Documents, Interviews, Research

1'

-

'

r

-- -·-. w--

·-----------

·~

Pleading

Attorney: Interviews, Research, Analysis Paralegal : Client Interviews; Document Index; cast of Characters;

Ill: .. I.* .,... .,_. ""'"' l!,I!'\ ,., • 1 u A·>!),, Q v,, ,, ~·

··--

ill l'l· lJ.

Y/llw,, U11JJ """" ?••p - , , . lo.,.., Anrt>1 B•lt:~ iolllltl'II i11tiil• •" "'"' J1f1"',!JQ;

P"'~"" " """ " ~ ·~lhlUII~" 1,1...,01111mo p.i,11, '' JAi1111 ~ r .IJ-11 IM-1" .. • "'"" 12.0lr.!1113

flnx r• •

°'-*' c..,....,,,,,.....(....(.

t ! ,...

~-.., CD.ui...n ~q,L.....

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J)h• 'ic

w111os.11r.ms

'"1.......,_t litll, ei;,,1 ~

l""!llHM ..... Jf ...... KIJKllt S11tt--,or. ltlJI tl!IH b , oyftnl PJll p l!P..+ Pl p•

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111P

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1,,r.......... ...... ..... '*-'111.-'ldl :, ....... ~ I '-*-.; •Illa.:" lt'•-.:i f tu..::1,-.W ....,, 2. t,,• "I; :>z:w:ie... /It· - I llo.'I'.

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• 5 C' ... ...., ""' Jer111 ~ Joil"! CM •• ~ •tc:

OM,,(~"'lftJ l •• 16 .A\.Cllt: ,. . .,.,.c:r.a,-n;-.-4',#~

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1111 11 t, · •

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-.......:?:- ,..~ ..... ·- ~ ~

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. ...... ••ZJ .... ~-et... •

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~

ReportBook

Source: Reprinted with permission of LexisNexis. All rights reserved.

trial notebook must be updated regularly, again to be sure that there is no duplication of effort and that current activity information is made available to all members of the legal team. Even in less complex litigation, the amount of paper that must be moni, tored and carried to court can be overwhelming. It is not unusual to see lawyers and their litigation support team using hand trucks to move file boxes to depositions or to court for trial. While there is a certain comfort in having the original paper copy, this is not always practical or realistic in contemporary cases; much of the documentation is in the form of electroni, cally stored records for which there may not be an ''original'' hard copy. Even in simple traffic accident cases, much of the documentation is stored on a computer in electronic format, such as the accident report prepared

• • ~·~u....w;,....

NoteMap

59

60 CHAPTER 3 by the investigating officers that is submitted electronically online to the police department and the state. Obtaining a hard copy of the report re-quires a computer and printer. In court, the report may be better displayed to everyone with a computer presentation. When there are hundreds or thousands of such documents, having a system for electronically storing, locating, and retrieving them becomes es-sential. For the litigation paralegal, the ability to quickly find the documents and then project them on the trial attorney's computer or the court computer screen in trial is a timesaver and stress reliever. No more scrambling through boxes of paper to find the specific item that is suddenly required as a result of unexpected testimony of a witness. Every case starts with basic information in the form of interview notes and research by attorneys, paralegals, and investigators. Documents that may be used as evidence are gathered in paper or electronic form. Members of the legal team must analyze the facts and the documents to decide on the most appropriate course of action. Ultimately, pleadings and exhibits are prepared for use at trial. The question is how to organize everything in a meaningful way that allows access to those who need to know when and where they need it. In the boxed paper file case, there is always the concern that someone has removed something without leaving a form or note to indicate that it has been taken out of the file. Exhibit 3.10 shows the flow of information in a typical case, using CaseMap as a case management tool.

CASE AND PRACTICE MANAGEMENT SOFTWARE LEARNING OBJECTIVE

4

Explain the reasons for the use of software for managing I itigation cases .

paperless office Office where documents are created, stored, received, and sent electronically.

e-repository (on l ine document repository) An electronic data storage facility accessed using the Internet.

Rarely do members of a legal team work on only one case. In some instances, different members of different teams may work on cases together. For example, a litigation support paralegal may work for different attorneys han-dling different cases in different areas of the law. The legal team may work on a number of cases at the same time, and each case may be in a different stage of preparation for trial. With the team approach to handling cases, each member of the team must be able to access case information and know what the other members of the team have done and what still needs to be done. In the traditional paper file case management approach, the physical file is the repository of everything from interview notes to pleadings and exhibits. As the team works on the case, members must locate the physi-cal file and remove the needed folder. In the paperless office, everything, in theory, is available on the computer screen. Documents are stored elec-tronically: pleadings and notes are saved as word processor files, and tran-scripts of depositions and court hearings might be scanned for electronic storage. For the case with voluminous paperwork and many days' or weeks' worth of deposition transcripts, the only way to access relevant documents or appropriate deposition notes quickly and efficiently is by use of com-puter software. The creation of documents in electronic format and the scan-ning of existing paper documents into electronic format allow the storage of shared documents from any data storage device. In some cases, the files are stored on remote file servers of outside consultants and vendors, sometimes called e-repositories or online document repositories, with remote access permitted only by authorization.

LITIGATION MANAGEMENT AND TECHNOLOGY

A number of software programs can be used to manage the law office and the cases within the office. These are generally called case management or practice management systems. Practice management programs have evolved out of the early programs that tracked time spent on cases, some-times with a calendar component that could be used to track deadlines such as the statute of limitations for a case. Modern programs may include prac-tice management functions such as time keeping, cost tracking, calendaring, conflict checking, scheduling, and contact management. Others allow for management of individual cases, including tracking of documents, parties, issues, and events. There is a close relationship between office management and case management functions. Some of the functions overlap; for example, contact management (maintaining information for contacting clients, parties, and others, like mail and e--mail addresses and home, work, and cell telephone numbers) is a part of office management and of case management. Many of the specific specialty applications of software programs used to perform these functions duplicate the automation of these functions. Case management programs typically store and index for quick access contact information, such as names and information on clients, parties, wit-nesses, opposing counsel, experts, judges, and anyone else associated with the case in any manner. They also provide links, in the form of a path, to the location where the document is stored. For example, Server or Computer Drive C:

\Folder \clients

61

case m anagement system Software for organizing the parts of a case in a central repository that can be shared by all members of the legal team.

pract ice m anagem ent system Programs for managing the daily operations and functions of an office.

\subfolder \file name .file format \Leonard \police report .pdf.

Case Map CaseMap™ from LexisNexis® is a case management and analysis software tool that acts as a central repository for critical case knowledge. As facts are gathered, parties identified, and documents and research assembled, they may be entered into the program, allowing for easy organization and explora-tion of the facts, the cast of characters, and the issues by any member of the legal team. It also allows for creating specialty reports and documents includ-ing trial notebook information. Cases (or matters, as they are sometimes called) are issues that a client has presented to a legal team to handle and resolve. Cases are sometimes referred to in the office as the '' client file'' or the '' client file on the [name of topic] matter." A case file in a simple case like the ''Gordon Power of Attorney file'' or the ''Leonard Will file'' may consist of only a few pages of information obtained from the client, a copy of an old document, and the final document prepared for the client's signature. In a more complex case like a tort claim involving a building under construction, or an employment discrimination class action, the case file may consist of thousands of documents with hun-dreds of people involved as parties (plaintiffs and defendants), witnesses, and experts and a dozen or more members of the legal team who will work on the case and need access to the information. It is possible to handle a complex case without computers. For hun-dreds of years, lawyers have handled cases, pushed papers around, moved file boxes, and spent hours reviewing documents, creating indexes and cata-logues, and writing notes to others working on the case.

WEB RESOURCES Find more information on central hosting servers at the IQwestlT website.

cases Issues that a client has presented to a legal team to handle and resolve.

62

CHAPTER 3

Manual case m an agem en t for t h e legal t eam m ay include t h e cr eatio n an d u se of a case noteb o o k and a trial n o t ebook . These ar e t abbed b inders w ith a t ab fo r each m ajo r elem ent of the case. In som e cases, an entire b inder m ay be devot ed to o n e topic, like wit n esses o r d ocuments. The following is a r epresentative listing o f tab s and a sample o f th e form that migh t be u sed. • Things to Do Date Due

Responsible Party

What

6-30-2018

Obtain accident report

7-15-2018

Interview investigating police officer

J L Investigator

• Parties/Witnesses Name

Address

Home Phone

Work Phone

Comments

Nancy Smith

333 Main St

1 23-456-7890

987 -654-321 0

Passenger in other car

K. Lombardo

222 South St

555-111-2222

555-333-4444

School bus driver letting off passengers facing accident scene

• Docume nts

Bates#

Document Name

Date

Comments

Author Officer Hannah

P001-P003

Police accident 5-15-2016 report

Shows citations issued to Def.

P002

Repair record

Shows brake Newtown problem in Def. auto repair car mechanic Ed

4-20-2016

• Research/Authorities Name

Jurisdiction

Type

Citation

Description

Bell v. Farmers Insurance Exchange

Cal. Super. Ct

Case law

234 Cal. 456

Compensation • issue

Driving too fast for conditions

Cal

Statute

43 Ca. Code

Defines standards for ...

A m o r e complet e list of tab s for t h e case n otebook and t h e t rial n oteb ook is shown in Exhib it 3.9. E ach o f the pages in the case o r trial n otebook can be cr eated u sing a word processing progr am and t h e table feature, w ith h ead -ings ad ded as sh own in p r evio u s sam p les. They could also be cr eat ed u sing a

LITIGATION MANAGEMENT AND TECHNOLOGY

spreadsheet or database program, depending on the need to sort information or extract information using database queries. The manual method will work in smaller cases. In the days before computers, that was the only method available. Preprinted forms were used before forms were created with the word processing table feature. Database applications were accomplished by entering the information, such as wit-ness contacts, on individual cards. In cases involving multiple members of the litigation team, constant questions heard in the offices were, ''Who has the case file?'' or ''Who took home the evidence binder?'' Similar pleas were heard regarding the location of a missing portion of a file needed by an-other member of the team to enter data, review information, or prepare documents. However, the advent of the computer has been both a blessing and a curse. It has been, for some, a curse because it is so easy to create elec-tronic documents that may be relevant to a case. Consider the number of e--mails generated each day in large organizations; these may need to be reviewed to find relevant documents to prove a large multinational finan-cial institution created a hostile working environment or sexually harassed employees. The blessing is that computers can also be used to search for relevant terms in a document and can automatically eliminate duplicates of the same e--mail. Case management software can be used to organize the cast of characters in a case the documents, the relevant timetable, issues, legal authority, and other desired information. Good case management software organizes the data and provides it to everyone working on the case. Individuals are then able to input information on the portions for which they are responsible, and everyone has computer access to the information through a local network, a wide area network, or cloud computing. The typical file or case starts with an interview with the client. In the pre--computer days, in offices that had formalized their ''paper system," this consisted of a client accident interview form, as shown in Exhibit 3 .11, completed by the person who conducted the initial interview. The system may have also included the use of forms for gathering and organizing in-formation from fact witnesses (Exhibit 3.12) and experts (Exhibit 3.13), and a summary system for recording and easy retrieval of key informa-tion on the outside of the file folder or on a paper data sheet on the inside cover. The forms you see in Exhibit 3 .14 and others like them are still used in many offices not as a repository of the information, but as the input docu-ments for the computerized system used for case management. More impa-tient users can even bypass the paper input forms and enter the information directly using a smartphone, laptop, or tablet PC or by keyboarding directly into a workstation. Some case management programs have provisions for scanning in data directly from forms and templates. Exhibit 3.14 is a sample of the AbacusLaw form that is designed for importing information directly into the program database. As the different members of the legal team lawyers, paralegals, investi-gators, and secretaries obtain information, they can enter it into the case management software and update the case file as new information becomes available.

63

64 CHAPTER 3

Exhibit 3.11 Paper-based interview form Accident fact sheet INVESTIGATION CHECKLIST

Client name Phone Chm)

(wk)

(cel l)

Current address Prior address(es) Date of birth

Place of birth

Social Security No. VEHICLE CLIENT OPERATING/PASSENGER

Owner and type of motor vehicle Insurance Co.

Policy number

Insurance company contact

Phone

Date of incident

T ime of day

Weather conditions

County

Municipality

(wk)

(cell)

Location of incident City, State Opposing party A d dress Phone Ch m) Owner an d type o f motor vehicle Policy number

Insurance Co. FACT WITNESSES

Nam e

Address

Name

Address

Name

Address

Name of ambulance Name of hospital Copy ordered

Police report issued Photog raph s of scene taken Name of treating physicians EXPERT WITNESSES

Name

Address

Name

Address

Summary of cause of action Attach detailed accident/incident description, accident reports, and d iagrams.

• • • • • • • • •

A typical case file con tains d ocum entatio n of t he: interview o f th e clien t; inter views of fact and exper t witnesses; investigation reports; exp er t repor ts; research m em o ran da; docum en ts; eviden ce; p leadings; an d trial preparation m at erial.

LITIGATION MANAGEMENT AND TECHNOLOGY

Exhibit 3.12 Paper-based interview form-Witness information Witness Information CLIENT PERSONAL DATA

I

C lient Name

I

Case No.

Address

File No.

City, State, Zip

CASE DATA

Phone

I

File Label

IDate

Case issue

Responsible Attorney(s)

WITNESS DATA Witness Name

IOUSYes Citizen O No

~iiases, if any Current Address

Phone

City. State, Zip

Past Address(es) Date & Place of Birth

Sex

Name of Spouse

Number/ Former Marriages

Race

Current Marital Status O Single O Divorced O Married O Widowed

Age Number/Children

O Separated Name of Children (natural & adopted)

Age

Age

Name

Current Employer Address

City, State. Zip

Job Title

Phone

Supervisor

From

To

Previous Employer Address

City, State, Zip

Job Title

Phone

Supervisor

Education/Name of School

City/State

From

From

To

To

High School Colle e

Technical/Other

Witness for O Plaintiff

O Defendant

Type of Witness O Expert O Character

O Eye Witness

Have you ever been a party or witness in a court suit? O No O Yes

If yes, where & when

OTHER PERTINENT DATA

C'......... oir;..,:;'1. C) IQA OVrl'\,l,I ........ ........ u ,- n ..=........... ! .. ' . C' •

Using Case Management Systems Efficient use of a case management system gives all authorized members of the legal team access to all of the case information, day or night. Effectiv e case management, therefore, requires some central repository of the infor, mation gathered b y each of the team members, as well as the ability of each to access the case information input b y others. The Internet, networking,

Degree

65

66 CHAPTER 3

Exhibit 3.13 Expert witness interview form EXPERT WITNESS CHECKLIST BACKGROUND Date of birth

Full name Business address Business telephone number

Business fax number

Business email address

Business website

Locations of prior offices Home address Home telephone number

EDUCATION Schools attended

Dates of attendance

Degrees or honors awarded Continuing education courses

WORK HISTORY Place of employment

Dates of employment

Job description Reasons for leaving Specific area of expertise Published articles and books Professional affiliations Professional magazines subscribed to Licenses and jurisdictions Litigations or disciplinary action

PRIOR LEGAL EXPERIENCE Ratio of plaintiff/defense cases Prior clients including date (plaintiff or defendant) Types of investigations with dates Deposition testimony given with dates Court testimony with dates Legal references

AVAILABILITY Vacation plans and dates

Potential meeting dates

and cloud computing permit members of the legal team to access the reposi-tory from remote locations across town, across the country, and sometimes across the world. A high level of collaboration among members of the legal team is becom-ing common practice, even in smaller law offices. In part, it is a result of in-creased complexity of cases, shortened time to prepare for trial (under court rules and procedures for getting the backload of cases reduced), and increased

LITIGATION MANAGEMENT AND TECHNOLOGY

Exhibit 3.14 Abacuslaw intake form ?•

Intake Form: Pl Case lnlake Form

)

...'

Please enter nfomlitlon ibout the OH,

Chedc f'Of dupllcates ~=========.=~~~~~~~~~j - ____ __,

Pliintif v. Oefendint [Sten v a,ru;

~

Courtj Court Case NurrCJer

:=:=========---~~~---

-

Opened j 03/04/10 ,~

1~

Attorney j AM

j

Userl [ User2

:==========~~~~---

Please enter the dent's contiet riformaoon be;ow

l I :==================::==::,-~~-' Fnt n;1me [ El5al>eth :================:::;-~ Dear [ n.~eth List l1it'Tle j Sten

I

Addressee ja beth Stm StJeet Addfess t

Chedc for dupkates

I1c O~ o.. [),,.,

I

Street AddreS!. 2 Street Address 3

l

ZC> l&J40 Otv jG..oroe Schwl

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:==============,~~~~~~~--' v,cx1c Phone C )

•

=======: :========: Cel Phone ( ) -

Home Phone ( ) •

Fax Nun'tler

select the WHO code fot calendared Events.

IWPOOSbr& Attorney .... [AM ____

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Please enter the other drwer's contact nfof'IT'atJon belo\Y, List name

-

Chedc for dupbtes

Ff'5t naffl'l

Addressee Addless 1 Address 2 Adckess J

I::::======----. IIEJ 0tvj j SbteO ZC>

Source: Abacus Law Intake form from Abacus Data Systems, Inc. Used by permission.

speed of justice. In many smaller, specialized practices, the resources or the expertise may not be available to handle the occasional large or complex case. For example, a small firm of tax attorneys (with expertise in tax evasion issues but not much trial experience) may collaborate with a small trial or litigation boutique firm; each firm supplies the expertise in one area and shares all the case files and information to better serve the client. One of the tools in col-laborative situations is the individual assessment of the importance of items in the case, as shown in Exhibit 3 .15. Litigation can be ver y expensive. Part of the cost is related to the time the litigation team must spend processing, organizing, and sharing information and documents. Where the organization can be handled by a team mem-ber whose time is billed at a lower rate, the client saves money, and the su-pervising attorneys and paralegals can work more productively . Clients and

67

68

CHAPTER 3

Exhibit 3.15 LexisNexis CaseMap Case Evaluation Screen t--

-..t n; - L,1•N."1i(~IEf·~r

· ,llle .l;a• Ill"'~ '

IJC'II "r"11 •

i,.,..-

.£/

c

S,,a:,:,: ~;rt;; J.,co,

be

Disputed by: Wrongful Termn.ation Opposition Disputed by:

!

f

Opposrtion

I

?

+

..

=

•

W.r1?1J9-f.lll.I ~i:mifl.i!P.~ll .De.~~-~.. Termination

,

Dispu1ed by: H.nvttlns Specific

'

/

·,

I

?

I o:a'

Undisputed

Susan Sheridan i

O?n?/200!5

No

·I

., ,

·1

P.hi.lJP. H~wt

•

I

..

complains about

r Voled 05.'t 112005

B:

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'.

S11s..an Sh~ri

Undisputed

DerPQfiori

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Disputed by: Ha11Rins Specific, Demotion

Y~l

Us Undl$pUted

' - - - - - - - - - - - -""fmiil~1ns;-z.r.r..--- - - - - '

Philip Hil\Vkm and 1MlJi;im Lar!O meet.

777?

Philip Hawkins alleges that William La11g lells him 'The old Complaint, p. 8;

wood mu~t be trlmmed back hard." Philip Ha\vtlns transrt!rted 10 Ansr.ar f!iotech 1ne1us1rte!i office In Fresno.

.Qe£!¢.SJllQrJ .ot..P.hJIIP.. Oe~osllloo or Philip HawkiCIS. p.43, 118•

Pattern & Practice

"

SP!:!Crli,< •

Bt:o·~ 8

I

l\tl)Cr\~0~'$

l oci$

u A, • y 2 lrtc,01t1tc5'1011tStotcl-iOhw0}'2E2 o,>ci,;cr11 o::enc T111 rnr-1r,,m 1 A·.¥1 :'l m ,, nart~, G ilr)' Kin9(1nn C:ity ll,1i .... 'IIJII l.

'/./ron'equal brancfles of go\•ernment; represented by the presi· denl and adminislrative agencies.

Judicial branch O ne of !he three ce>equal brancfles of governme nt; represented by the coul1 system.

lcg1sfa1ivc branch O ne of !he three ceqwl branches of go\•ernment; represented by Congress, the House of Representatives, and the Senate.

sta1utcs Enactments b)' the legislafrve branch that include provisions to define and regulate the conduct oi its citizens; may also regulate the opera lfon of a business or profession.

Adn1rnistrative Regulations and Adjudications

PRACTICE TIP

A dministrative agencies enforce statutes. Both fede ral and state governments create administrative agencies by implementing statutes. A dministrative agen.cies operate unde r the executive b ranch of t he state and federal governn1ents, ad m inistering the laws b y creating and enforcing r egulatio ns to carry o ut the statutes. Administrative agencies create law in two ways. First, agencies issue rules and regulations that define rights and procedures in the areas that the agencies administer. Fo r example. the Internal Revenue Service, an adminis.rrative agency under the governance of the Department of Treasury, issues rules and regulatio ns that define what items are included as gross income fo r calculating income rax. The second way administrative agencies create law is by conducting hearings to determine the rig hts and obligations of the parties subject to the agency's regulatio ns. When a person seeks benefits under the Social Security law , the Social Security Administratio n conducts its own fact finding and hearing to render a decision to g rant or deny benefits Son1e agencies operate solely o n the federal level, such as the Inte rna l Revenu e Service and tJ1e Socia l Security Ad m inistrat ion . Others oper.ate sole ly o n the state level, suc h as the \Vorkers Com pensation Board. Still others sha re concurrent authority, such as the Environmental Pro tec tion Agency (federa l) and the Department o f Environmental Resou rces (state).

Some federal and state administra tive agencies, such as the Soc ial Security Administration, permit para· legals to represent clients in administrative hearings without the supervision of a n attorney.

Case Law The jud icia l b ranch of the government is the sou rce of case law. Case law is a written decision by a court t hat resolves a particular legal dispute be.fore t he court. Disputes that cann o t be resolved a m icably by the parties involved are p resented to the cou rts for adjudicatio n. Und er ou r court sys.tem t written decisio ns serve as precedent to resolve s imilar disputes in the futu re. Courts review prior case decisions with fac ts s in1ilar to those in the current dispute. The system of using p rio r case law decisions for making

case law law created by \VTitten decisions ls· sued b)• the judicial branch; decisions resolve the dispute before the coul1 and ser\!e as precedent or gujdanc:e ior similar future disputes.

84

CHAPTER 4

~l.Jlf• dtXi!>I'>

legaJ principle 1ha1 prior case law should apply unless there is a substan tial change in society necessilating a change in lhe law. 4

negligence Cause of action in which the plaintiff claims that anothe.r person' s failure to act as a reasonable person would have aded under the same or s.imi lar circumstances caused injury for which 1he plaintjff should be awarded damages. 4

con1r.1d Agreement entered by hvo parti~ ior valid consideration.

LEARNING OBJECTIVE 2 Understand the need to prove the elements of a cause of action and remedies available.

current decisions is called stare decisis. Stare decis.is allows for p redictabil.. ity and flexibility in our judicial system because court s c hange pr ior case law decisions only when a s ignificant societal change occurs that requires a reconsideration co meet c.o ntempora ry needs. By reviewing prior case de.. dsions w ith facts s imilar to those in the client's s ituation, the legal team can help the client plan how to p roceed and pred ict how a dispute will be resolved. \Vhere, however, the legal team can demonstrate to the court t hat the old decision is out of step with the demands of society, the court may change the law.

• CAUSE OF ACTION AND REMEDIES Not all wrongs comm itted result in civil litigation. Some wrongs a re identified by the govern ment as crimes that subject the w rongdoer to a fine and/or itnprisonment. Other wrongs m ay be civil wrongs. A w rong that is legally recognized as a basis fo r compensating one for the harms suffered is

VIDEO ADVICE FROM THE FIELD _ _ _ _ _ _ _ __ Interviews with trial cour1 Judge Chad F. Kenney, Court of Common Pleas of Delaware County, Pennsylvania A. Meet the Courthouse Tearn: The members o( the cour1· house team and their roles are described. Judge Kenney explains the role of the Judge, the roles of the plaintiff and defense and the expected de· corum expected in a trial. After watching the video al www.pearson.com/ goldman-civil-litigation, anSWN the following questions. 1. ~Vhat are duties and role of the different members of the courtroom team? 2. What are the limitations on the role of the paralegal in court? 3. ~Vhat is expected by the court of the lawyers in a trial? B. Difference Between Civil and Criminal Cases: Judge Chad F. Kenney explains the differences be· tween civil and criminal trials and the duties of the court in protecting the par1ies and the duties of the lawyers in each type of case.

After watching the video at www.pearson.com/ goldman-civil-liligation, answer the following questions.

,:'I!, -. 1L.I,u11 •,11 ' .,: . '".

~ ..

.

ii

.;.-"I ...

..

1. ~Vhat is the burden of

proof in a criminal case? 2. What is the burden of proof in a civil case? 3. ~Vhy is there a difference in the burden of proof?

C. Demeanor in Court: Judge Chad F. Kenney explains what is expected of people appearing in court. After watching the video al www.pearson.com/ goldman-civil-litigation, answer the following questions. 1. What attire is expected and why? 2. Why is a paralegal not normally allowed to approach the bench? 3. Why is a lawyer not normally allowed to approach a witness in court?

THE COURT SYSTEM, SETTLEMENT, AND ALTERNATIVE DISPUTE RESOLUTION

ADVICE FROM THE

85

FIELD~~~~~~~~~~~

ADAPTABILITY OF THE LAW Judge Jerome Frank addressed the value of the adaptability of law (Law and the Modern Mind, 1930): The law always has been, is now, and wi 11 ever continue to be, largely vague and variable. And how could this be otherwise? The law deals with human relations in their most comp I icated aspects. The whole confused, shifting helter-skelter of life parades before it-more confused than ever, in our kaleido. scop1c age. Men have never been able to construct a comprehensive, eternalized set of rules anticipating al I possible legal disputes and formu lati ng in advance the rules which would apply to them. Situations are bound to occur which were never contemplated when the original rules

were made. How much less is such a frozen legal system possible in modern times? The constant development of unprecedented problems requires a legal system capable of fluidity and pl iancy. Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions; although changes cannot be made lightly, yet rules of law must be more or less impermanent, experimental, and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident; it is of immense social value. Source: Adaptability of the Law by Jerome Frank, Law and the Modern Mind, Transaction Publishers, 1930.

called a cause of action. Legal recognition of a wrong can come from any of the four sources of law. In civil litigation, there are two main causes of action, torts and contracts, and within each are distinct causes of action, for example:

cause of action A wrong that is legally recognized as a basis for compensating one for the harms suffered.

torts

Torts Product liability Negligence Discrimination Contracts Improper performance Failure to deliver Each cause of action is made up of elements that define that cause of ac-tion. To succeed in a civil lawsuit, the plaintiff must prove each element of the cause of action by preponderance of the evidence. For example, for the tort of negligence, the four elements are: 1. Duty of care the defendant owed the plaintiff a duty of reasonable care to not be the cause of a risk of harm. For example, we all have the duty to operate our automobiles safely by observing traffic control de-vices and speed limits. 2. Breach of the duty of care the defendant failed to observe the duty to use reasonable care as required of him. Running a stop sign is a breach of the duty of care. 3. Causation the defendant's failure to observe the duty of care was the cause of an injury to the plaintiff. The defendant ran the stop sign, which resulted in his collision with the plaintiff's motorcycle.

Civi I wrongs that are not breaches of contract for which the court can fashion a remedy.

elemen ts Components of a legal claim that must be established by the burden of proof.

p laintiff Party who files a lawsuit seeking re lief for a harm suffered.

preponderance of evidence Burden of proof in most civi l litigation cases; the amount of proof that tips the scales of justice ever so slightly in one direction or the other.

d uty of care Duty of individuals to use reasonable care to avoid causing harm.

defendant Party who is sued in a lawsuit.

86

CHAPTER 4

general damage..:; Damages related to the IOJUry sus-tained that cannot be ca!OJlated with a ny particular formula or accuraq•.

special damages Damages that can be calculated with some level of accuracy.

monetary remedies Form of damages thal assigns a finan·

cial value to !he ha.nn suffered by a plaintiff.

equitable rem Electronlc R~lld,ng Room

About Foia

O

SHAR[

I] 'I el ]

Electronic Reading Room

FOIA Requests • Electronic Reading Room

Exemptions & Filing A FOIA Appeal FOIA Plans and Reports FOIA Fee Schedule

Accident Dockets

Publically Released Records

NTSB FOIA Contacts

}. NTSB Presentation to WMATA Board of Directors (Aug 9 2010) Chief FOIA Officer: Angel Santa Oodcet stems relate ABOUT> FOIA > Ellemptions & Filing A FOIA Appei!I

About Foia

SHARE

IJ " B _ ]

Exemptions & Filing A FOIA Appeal

FOIA Requests Electronic Reading Room

FOIA

Exemptions

NTSB FOIA Contacts

• Exemptions & Filing A FOIA Appeal

Tile National Transp0rtatlon safety Board embraces administration potk:y and applies

FOIA Fee Schedute

a presumption of openness in responding lo FOIA requests. The NTSB has also taken steps over the past t\•10 years to make discretionar1 releases of record as evidenced

Accident Dockets

by the number of dockets posted to tne public wet>s,te.

FOIA Plans and Reports

Public Access Link (PAL) Maintenance

However, certain records retained by the NTSB may fall under exemptions of the

Chief FOIA Officer: Angel Santa

Director, Office of the Chief Information Officer The Chief FOIA Officer is a senior official vmo oversees the NTSB's

FOIA. The NTSB \ViD deny reQuests, either in \Vhole or in part, if the request seeks information that falls within one of the exemptions of lhe FOIA. The NTSB may deny a

FOIA program.

request based on the follo\Ying exemptions:

FOIA Public Liaison: Melt>-a D. tl'loye

• Exemption 3 : Information that another statute prohibits release. This includes, but is not limited to, the follo•Nlng information: o Cockpit Voice Recorder (CVR) tapes. TiUe 49 u .s .c . § 1114(c) prohibits the release of any CVR lape. However, I.tie NTSB may release a CVR transcript (edJled or unedited), in accordance with 49 U.S.C. § 1114(c) o

Chief, Records ~tanagement Division,

(202) 314-6540 The FOIA Public: Liaison serves as the supervisory oft'lcial to vmom a

(1);

FOIA requester can raise concerns

Voluntarill{ provided safety-related information. Title 49 U.S.C. § 1114{b)(3) prohibits the release of such information if it is not related to the exercise of the NTSB's accident or incident investigation authority and if t:he NTSB finds that the dlsclosure would inhibit the voluntary provision of that tifpe of Information;

about the service the FOIA requester

has received from the FOIA Requester Servke Center, following an initial response from the Service Center staff.

o Records or information relating to the NTSB1s participation in foreign

aircraft accident investigations. 49 U.S.C. § 1114(f) prohibits the release of this information before the country conducting the investlgallon releases Its report or 2 years following Ille accident, Whichever occurs first: o Passenger lists, In accordance with 49 o

u_s.c_ § 1136(d); and

Other information that is prohibited from release by another statute. For example, the Procurement lnte9rlty Act prohibits the NTSB from releasing certain information regarding bids on government contracts.

• Exemption 4 : Information or trade secrets that private corporations or other entities have submitted to the NTSB In the course of an investigation. • Exemption 5: Information that reflects the NTSB's internal deliberations, speculations, or ideas_ This includes drafts of reports and certain analyses. • Exemption 6 : Personal Information, where a privacy interest outweighs the public interest in disclosure. This includes graphic photographs of victims' i,njuries. autopsy reports, medical records, or other information from participants in an Investigation, such as contact Information. • Exemption 7 : Information from an investiOation that is ongoing.

Source: National Transportation Safety Board Website.

FOIA Requester Service Center ror

lhe NTSB: (202) 31 4-6540 or {800) sn-6799 The FOIA Requester Service Center specialists assist FOIA requesters seeking information concerning their FOIA requests or the agency's FOIA response.

INTERVIEWS AND INVESTIGATION IN CIVIL LITIGATION

195

traveled across town at rush hour in just ten minutes? Does it really make sense that the plaintiff's inability to work was the result of a minor automo-bile accident that caused no damage to either vehicle? There can always be unforeseen explanations for what at first appears to be unusual or impossible. The paralegal should identify such inconsisten-cies in the early stages of the investigation and do the additional research or investigation needed to resolve such discrepancies. Successfully investigating and analyzing the client's case will make the paralegal's job rewarding and the legal team's job easier.

~ ( h e Ck l~i~S~t~===------- - - -~ INVESTIGATION INFORMATION SOURCES Information Source

Web Address

Police Records

Local

WWW.

Police Records

State

WWW.

Birth Records

WWW.

Death Records

WWW.

Driver's Licenses

WWW.

Vehicle Registration

WWW.

Corporate Records

WWW.

Real Estate

Recorder

WWW.

Real Estate

Tax

WWW.

Real Estate

Land Mapping

WWW.

Register of Wills

WWW.

Trial Court

WWW.

Federal District Court

Clerk's Office

WWW.

Federal Bankruptcy Court

WWW.

Occupational License

WWW.

Weather Reports

WWW.

Physical Location

Comments

Room Federal Court House

Complete this list by adding the local or regional office web addresses, mailing addresses, and room numbers for personal visits; add comments and note any appl icable contact people, costs, or hours of operation.

196 CHAPTER 7

CONCEPT REVIEW AND REINFORCEMENT

screening interview 169 implied attorney- client relationship 169 fact witness 172 cultural sensitivity hostile witness

177

180

leading questions

181

open--ended questions

181

narrative opportunity

181

Restatement of the Law Third, Torts: Product Liability 184 arbitration

188

privileged communication 182

tangible evidence

moral obligation

182

spoliation of evidence

ethical obligation

183

expert witness

183

189 189

Freedom of Information Act (FOIA) 190

INTERVIEWS AND INVESTIGATION IN CIVIL LITIGATION Introduction to Interviews and Investigations

Trial preparation starts with the first client contact and the gathering of the first document. The initial contact with a client or potential witness may set the tone for the interview and willingness of the person to cooperate.

Preparing for the Interview

Investigation checklists should not be viewed as static documents. Physical surroundings in the interview location can set the tone for the interview. Dress and appearance, including clothing, posture, and manner of greeting, create the first impression. Communication skills in a multicultural society require that interviewers develop an ability to appreciate differences in how and why individuals act and react differently.

Conducting the Interview

The paralegal must, in the first meeting, make it clear that he or she is a paralegal and not an attorney, and that only an attorney can give legal advice. Listening skills include the ability to listen to what is being said and not just the words being used. Good listening skills include the ability to disregard distractions and not make assumptions about the facts of the case. Leading questions are those that suggest the desired answer. Open--ended questions are designed to give interviewees an opportu-nity to tell their stories without the limitation of a yes--or--no answer. Moral obligations are based on one's own conscience or perceived rules of correct conduct. Ethical obligations for the paralegal are based upon the Model Rules of Professional Conduct.

Expert Witnesses

Experts are individuals whose backgrounds, educations, and experiences are such that the court recognizes them as qualified to give an opinion based on a set of facts. Some law firms retain an expert to advise them but do not use that expert to testify.

INTERVIEWS AND INVESTIGATION IN CIVIL LITIGATION

Investigating Claims

197

The legal team must gather all of the relevant information about a cause of action before making a recommendation to a client about whether to file a lawsuit or respond to a claim of wrongdoing. Considering the defense's perspective allows the legal team to anticipate the potential defens es. Official reports associated with all litigation must be obtained and ana-lyzed. This analysis includes verification of the physical aspects of the case. Tangible evidence consists of physical objects that may have caused the injury. Loss or destruction of physical evidence may lead to a claim of spo-liation of evidence and an adverse inference or sanctions from the court. Timelines can be used to view the physical events leading up to and following from the incident and offer a graphic representation. The Freedom of Information Act (FOIA) is a federal statute de-signed to make accessible to the public information possessed by the federal government and its agencies. Individual agencies may not make available certain types of information. Witnesses may be located from official reports, directories, and the Internet.

REVIEW QUESTIONS AND EXERCISES ---

1. What is a screening interview? How is it differ-ent from any other interview? 2. Describe how to prepare for an interview. 3. Why are the physical surroundings and appear-ance of the interviewer important? 4. Explain the impact our multicultural society has on the interview process. 5. Why is paying attention to nonverbal cues as important as listening to the words spoken? 6. Define leading and open--ended questions. When are they best used? 7. Explain the difference between moral and ethi-cal obligations of the paralegal. 8. What communications are privileged? 9. How are experts used by the legal team? Are all communications with an expert protected

10. 11. 12.

13. 14. 15.

by the doctrine of privilege or work product? Why or why not? What is the purpose of investigating the cli-ent' s claim? Why should the legal team consider the defense perspective when conducting its investigation? Define tangible evidence. What penalties might be imposed on a party that destroys tangible evidence? How is the preparation of a timeline helpful in investigation of claims? What is FOIA? How does FOIA help the legal team investigate a client's claims? Describe how the use of the Internet and com-puter technology can assist in the investigation and organization of the client's claim.

BUILDING YOUR PARALEGAL SKILLS INTERNET AND TECHNOLOGY EXERCISES 1. Find an aerial photograph that depicts your county courthouse. 2. Use three search engines to search for your name and record or print the results. If you were a witness to an accident, would the search engines help a legal team find you?

3. Locate a witness with expertise in the use of Botox for medically necessary treatment rather than as a cosmetic procedure. 4. Enter data into a case management software program. 5. Create a database using Microsoft Access with information from the Appendix 1 case.

198 CHAPTER 7

CIVIL LITIGATION VIDEO CASE STUDIES Zealous Representation: When You Are Asked to Lie

The supervising attorney asks the paralegal to lie to obtain information needed • 1n a case.

After viewing the video at www.pearson.com/ goldman-civil-litigation answer the following questions.

1. Is misrepresenting yourself to obtain needed information in a case ethical? 2. May information obtained by misrepresenta-tion be used as part of the case?

CHAPTER OPENING SCENARIO CASE STUDY Use the Opening Scenario for this chapter to an-swer the following questions. 1. Prepare an investigation plan for the opening scene scenario or the assigned case study. Start by preparing a timeline. 2. Design an investigation checklist.

COMPREHENSIVE CASE STUDY SCHOOL BUS- TRUCK ACCIDENT CASE Review the assigned case study in Appendix 2. 1. Enter the assigned case study data into a case management software program.

2. Prepare a list of questions to ask the parents of the children killed in the accident. What special methods or techniques should be considered?

INTERVIEWS AND INVESTIGATION IN CIVIL LITIGATION

199

L---~ ..~-

//11 f}JJ

CIVIL LITIGATION TEAM AT WORK See page 18 for instructions on Building Your Profes-sional Portfolio.

Forms 1. Interview and investigation forms for: a. Client b. Fact witness c. Expert witness d. Accident investigation

2. Document requests a. Police report in your jurisdiction b. State police reports c. Medical records under local rules of court d. Newspaper articles and photographs 3. Freedom of Information Act (FOIA) requests a. National Transportation Safety Board (NTSB) reports b. Consumer Product Safety Commission reports

Contacts and Resources Complete the investigation information sources checklist from this chapter.

Information Source

Web Address

Physical Location

1. Design a client information sheet that will focus the paralegal on the information that must be obtained from the client.

Comments

2. Prepare a list of ten open--ended questions to obtain the information needed to complete the client information sheet you have designed.

VIRTUAL LAW OFFICE EXPERIENCE MOTOR VEHICLE ACCIDENT-PLAINTIFF VIDEO: WILKINSON VERSUS SMITH MOTOR VEHICLE ACCIDENT CASE: CLIENT INTERVIEW FROM PLAINTIFF' S VIEW The plaintiff lawyer interviews the plaintiff about his accident case.

After viewing the video at www.pearson.com/goldman-civil-litigation answer the following. To: Paralegal Intern From: Roy Saunders Case Name: Wilkinson v. Smith Motor Vehicle Accident Case

Re: Interview with Plaintiff Client 1. 2. 3. 4. 5.

Prepare a summary of the interview for the case file. Enter the client information in the office management system we use for time and billing. Enter the information in the case management system. Determine what additional information we need for the file. Determine what additional investigations we need to perform, such as additional questions for the cli-ent, other independent sources of information, police reports, hospital reports, doctors' reports, repair bills, and witness interviews.

200

CHAPTER 7

To: Paralegal Intern From: Paralegal Dante Case Name: Wilkenson versus Smith Motor Vehicle Accident Case

Re: Fact Witness Interview As part of my investigation into the automobile accident, I will be going to the scene to locate and interview any eyewitnesses. I would like you to come along and observe. When we get back to the office, you should prepare a summary of what we learn from these fact witnesses. VIDEO: UPL ISSUE: WORKING WITH A WITNESS

A paralegal, while investigating an accident, asks a witness to come to the office to give a statement and then offers to compensate the witness for his time.

After viewing the video at www.pearson.com/goldman-civil-litigation answer the following. To: Paralegal Intern From: Roy Saunders Case Name: Wilkenson v. Smith Motor Vehicle Accident Case Re: Witness testimony I understand you accompanied Dante, our investigator/paralegal, to see the site of the accident and talk with a witness and sat in on the meeting with the potential witness. Based on that interview I have some concerns. Please prepare a memo for me answering the following concerns; 1. 2. 3. 4.

Under what circumstances may a witness be paid a fee for testifying? What are the ethical issues of paying a fact witness a fee? What should be our office policy on identifying oneself as an investigator? Does the amount of the fee have any impact on the truth of the statements made by the witness?

MOTOR VEHICLE ACCIDENT-DEFENSE VIDEO: WILKENSON VERSUS SMITH MOTOR VEHICLE ACCIDENT CASE - DEFENSE' S PERSPECTIVE

Mrs. Smith, the driver of the car that hit Wilkenson, consults with an attorney regarding the accident. After viewing the video at www.pearson.com/goldman-civil-litigation answer the following. To: Paralegal In3tern From: John Morris Case Name: Wilkenson versus Smith Motor Vehicle Accident Case (defense view) Re: Interview with Defendant Client 1. 2. 3. 4.

Prepare a summary of the interview for the case file. Enter the client information in the office management system we use for time and billing (AbacusLaw). Enter the information in the case management system (CaseMap). Determine what additional information we need for the file.

Determine the additional investigation we need, such as additional questions for the client, other independent sources of information, police reports, hospital reports, doctors' reports, repair bills, and witness interviews.

... (

.

LEARNING OBJECTIVES After studying this chapter, you should be able to: 1. Select the appropriate court rules for preparing pleadings in civil litigation.

2. Describe the impact of the statute of Ii m itations on the commencement of a lawsuit.

3. Draft a complaint and a summons.

4. Determine the rules for fi Ii ng and serving the initial pleadings.

5. Create a timeline for litigation. 6. Determine when amended or supplementary pleadings may be required.

•

a1n

CHAPTER

ons, •

erv1ce OPENING SCENARIO The legal team had broken down the work on the case into two parts: the downtown office handled the liability issues and the suburban office handled the damage issues. The paralegals gathered all the information and were asked to prepare a draft of the complaint. Over dinner, they discovered they were doing some of the same work. They needed a single complaint for filing in federal court. To save time, they asked to work out of the same office while preparing the complaint and related documents. The partners thought it was time for the entire team to get together and review the case. While each was handling a specific portion of the case, they would all be bound by the same pleadings and, ultimately, preparation for one trial.

OPENING SCENARIO LEARNING OBJECTIVE Draft a complaint.

VIDEO INTRODUCTION

Pleadings, Complaints, Summons, and Service Overview After watching the video at www.pearson.com/goldman--civil--litigation, answer the following questions: 1. What are the pleadings in a civil case? 2. Are the rules for p leading the same in the federal and state courts in your jurisdiction?

203

204 CHAPTER 8 pl eadings Documents filed to commence and respond to a lawsuit

WEB RESOURCES Using one of the following state trial court websites, determine whether there is a requirement for page size, margins, and font type. A lso find you r state court's website. New York Courts http ://www. courts.state. ny .us/courts/trialcourts.shtml Pennsylvania Courts http://www. courts .state. pa. us/defau It. htm Illinois Courts http ://www.state. i I .us/court/SupremeCourt/Ru les/ Art_l 1/defau It.asp Texas Courts http ://www.courts. state. tx. us/ California Courts http://www. courtinfo.ca.gov/courts/trial/

LEARNING OBJECTIVE

1

Select the appropriate court rules for preparing pleadings in civil litigation .

Rul es o f Civil Procedure A set of rules and procedures in each court that must be followed in all Iitigation.

Federal Rules o f C ivil Procedure Rules and procedures that control all litigation filed in the federal court system.

PRACTICE TIP The December 2007 and 2009 Amendments to the Federal Rules of Civil Procedure have been approved, and some sections have been renumbered. Be sure you have the latest version.

INTRODUCTION TO PLEADINGS Pleadings are the documents filed with a court to commence or respond to a lawsuit. In the initial pre--filing phase, it is important to be familiar with the applicable rules of the court in which the action is to be filed and tried. The form of the pleadings and the procedures for filing and serving the plead-ings are dictated by the court rules for the court in which the action will be filed. The rules vary between federal and state courts. Within the same court system, there may also be local practice rules that amend or supplement the standard rules. The initial pleading is designed to give the party being sued notice of the filing of the lawsuit. The initial responsive pleading answers the claims made by the plaintiff or adds other parties that the responding party believes are responsible for the plaintiff's losses. Pleadings define the case by establishing, in the complaint, the alleged wrong and the claims for relief, and in the answer filed by the defendant, the defenses to the plaintiff's claims.

RULES OF COURT Rules of Civil Procedure establish the procedures that must be followed in all civil actions. There are federal rules that govern civil proceedings in the federal court system and state rules for the state courts. These rules have been written to provide a level playing field so that civil litigation is con-ducted fairly and produces a just result. The use of standard rules permits ev-eryone to know the required procedures for instituting and processing a case from beginning to end. In the American system, it also means that there is a body of case law available that demonstrates how the courts have interpreted the procedural rules and how they are likely to rule on the procedural aspects of current cases. The Federal Rules of Civil Procedure (Fed. R. Civ. P.) provide the basic set of rules for civil litigation in federal court. State courts have their own set of rules of civil procedure. Exhibit 8.1 shows a sample of a set of state court procedural rules. The basic federal and/or state rules are fre-quently modified by the addition of local rules that must also be followed. For example, some local courts have specific rules on electronic filing of pleadings. Exhibit 8.2 shows an example of local rules defining how doc-uments should be signed for filing in the Federal District Court for the District of Utah. Some of the local rules are as basic as requiring a specific location and method of stapling documents, the allowable paper size, and the requirements for using or not using backers on documents filed with the court. Rules that may seem unimportant (''What difference does it make if the document is stapled on the top or the side?'') are important to the court, and failure to follow them will, at the very least, irritate courthouse staff, who have to take the time to un--staple and re--staple the pleading. At the worst, in those courts that have transitioned to mandatory electronic filing, failure to check the most current rules and obtain the necessary training for electronic filing may result in a rejection of a filing and missing an impor-tant deadline. The rules of court also provide the timetable within which the parties must act for example, the time for the defendant to deny the allegations before a default judgment may be entered or a motion for dis-missal of the lawsuit may be filed.

PLEADINGS: COMPLAINT, SUMMONS, AND SERVICE

205

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11nn, Al ,r,.Onc Pre pert,.. Stn..,g Sf counsel will gen.. erally agree to voluntarily allow the examination of a client. In some cases, the legal team will request a list of physicians acceptable to the defense from which to select a doctor to conduct the D~1(E. This permits the attorney to eltminate those doctors who, in the attorney's experience, do not have the expertise o r the reputation fo r objectivity that is necessary. Doctors who may not be appropriate for a particular client, such as a male doctor for a female client in cer ta in cultures or religions, can also be elim inated. Judges do not want to be bothered with motions concerning discovery where there is no real issue. It is better for both sides to agree than to risk creating a negative impression with the trial judge. If not, your s ide might be wasting time and money on a motion that will easily be granted, giving the other side a moral victory and an opportunity to tell the judge on another i mportant motion that your s ide is always objecting. Litigation paralegals frequently prepare the client fo r the DN(E, explaining the purpose and what can be expected. Clients need to be advised of the d ifferences bet,veen a norn1al visit to their own doctor for the purpose of treatment and the nature and purpose of the DME, an examination that has the potential to help the other side argue against the injuries and damages the client claims. Dlv{E reports detail the exam ination, includ ing the history given by the client, any reluctance or negative reactions on the part of the client, and the level of the client's cooperation.. Fa iling to cooperate in all phases of the exam makes the cl ient appear to be withhold ing valuable information that might be needed fo r a proper medical evaluation. In some instances, the paralegal o r other member of the legal team may be a llowed to attend with the client. By attending the examination, the para.. legal or other team mem ber can observe the manner in which the exam is conducted: how n1uch time is spent taking the client's history, for example> and how long the physician took to perform the examination. These types of observations can be helpful when it comes time to review the DME report. The DME report will need to be reviewed, as will the credentials of the expert who issued it. In reviewing the report, the para legal who attended the DME w ith the client has an advantage. The Dlv{E report should be consis, tent with the observations and notes taken that describe what was happen ing and ,vhat was being asked and answered. The client's n1edical history and the findings upon physical exam ination should be accurate and consistent. This info rmation, as well as any opinions o r recommendations in the report, should be compared with the records and reports from the dienes treating physicians. The purpose of the review is to find ar eas within the report to at.. tack the cred ibility of the physician. For example, where the defense medical evaluation is performed based upon a review of the records only, the resulting report cou ld easily be attacked if the client was never physica lly examined .

OTHER FORMS OF DISCOVERY

385

Another area of review for the paralegal is the credentials of the physician who conducted the exam. A physician whose practice is limited to pediatrics is easily attacked for issuing a report and opinion on loss of hearing in an el-derly client. Whether the paralegal is evaluating a physician for selection for the client's case or evaluating the opposing legal team's selection, the creden-tials of the physician can significantly impact the case.

PREPARING FOR AND ATTENDING A DEFENSE MEDICAL EVALUATION Defense counsel and insurance companies regularly use the same doctors to perform D MEs for them. Although the doctors are professionals, they are looking to discredit the findings of the treating physician, minimize the im-pact of the accident or injury, or find a preexisting cause that reduces their client's liability. As with every science, there are gradations of possible find-ings and potential causes. People generally act with great deference to doctors. In seeking treatment, they are more likely than not to tell doctors things they would not tell anyone else. In a DME, a client who has not been properly prepared may think the doctor is asking questions in order to help and advise. This is clearly not true in almost all cases. The doctor has a job to do for the defense side and may use the position of physician to ask questions of a limited nature, focusing solely on some alternate theory that exculpates the defendant, rather than questioning that would lead to a correct diagnosis. Because of the concern for the methods of conducting the DME and the nature of the questions designed to give a basis for a negative finding, someone from the legal team generally accompanies the client to the DME and frequently sits in on the examination. It is desirable to have someone of the same gender as the client, but this is not always possible nor necessary, depending on the nature of the examination. For example, a dentist examining the jaw for temporomandibular (TMJ) in-jury will not reveal any embarrassing or sensitive physical conditions. Where there is a more personal examination or possible removal of clothing, the accompanying person from the legal team may be asked to face away from the client. It is always essential that the client be consulted about his or her feelings in this regard. Some may be very embarrassed at anyone being present for anything, and others will insist that the person from the legal team observe exactly what is done. The paralegal who attends the DME must make a report of the DME to the trial counsel. This includes the length of the examination, the questions that were asked, the tests that were performed, and the comments that were made. In some cases, the doctor will dictate the findings as she proceeds. There are standard tests and terminology that are used. For example, for an injury to the shoulder, one of the tests is a range of motion test. How far can the person rotate the shoulder now, immediately after the injury, and just before the injury? The degree of rotation is reported from O to 180 degrees, based on the chart shown in Exhibit 15.2. What may be observed during the D ME is a test for rotation in which the doctor pushes the patient beyond the comfort zone. The report might read that the person was able to rotate through the full range of motion, but the observation of the paralegal attending the DME is that the person called out in pain and asked the doctor to stop.

2

LEARNING OBJECTIVE Prepare for attending a defense medical evaluation.

range of motion The ability to move for example, the arm- through a variety of motions.

386 CHAPTER 15

Exhibit 15.2 Range of Motion for Human Shoulder Range 0, Motion • ShOukfer

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Anyone working in the civil litigatio n a reas involving personal inj ury or medical m alpractice must become fa miliar with at least some of the con1mon m edical termino logy used , such as the skeletal structu re of the body shown in Exhibit 15.3. In many cases when med ical records a re used, nurse consultants o r nurse paralegals are asked to review the records. Son1e have worked in areas of medical specialty, such as card iac care, emergency med icine, orthopedics, or another specialty. The specia lized knowledge of the medical issues and the p ractice issues in that specialty enable them to review medical records more efficiently than a paralegal or attorney w ithout medical train ing. In appropriate cases it may be beneficial to have a nurse paralegal attend the DJ\1E. Fo r some patients, having a nurse in attendance makes the pres.ence of an outsider more acceptable. \Vhen ch ildren are the clients, a pa rent sh ould always accompany the child to the DME. In these cases, it may also be advisable to have a m edical profes, sional, such as a nurse paralegal, present to avoid any issues of lack of privacy o r impropriety if the child is undressed in any way for the examinatio n.

OTHER FORMS OF DISCOVERY

387

Exhibit 15.3 Human Skeletal Structure Cranium----~~ r Skull

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REQUESTS FOR ADMISSIONS Requests for admissions are requests to agree to certain facts that, once established, do not need to be proven through evidence or testimony at trial. If all of the relevant facts are admitted, there are no disputed material facts , and all that remains is to apply the law to the facts, then a motion for sum-mary judgment could be filed. A request for admissions is not always appropriate, as this request is more likely to involve case or trial strategy than the more frequently used discovery tools of depositions and interrogatories. There are times when trial strategy calls for presenting parts of the case for the jury with w itness tes-timony or exhibits that are so compelling that one side wants the jury to observe it firsthand rather than simply be presented w ith a cold statement of fact. An example is the plaintiff who suffered the loss of a leg when the defen-dant drove a car into the plaintiff, who had been standing at the rear of a car loading grocer y bags into the trunk. Requests for admissions are written re-quests submitted to the opposing party, asking him to admit the truthfulness of facts, opinions of fact, the law applicable to the dispute, or the application of the law to the facts of the case. Requests for admissions are valuable tools for determining areas of agreement and focusing the legal team on facts and issues that must be presented to the jury for resolution.

3

LEARNING OBJECTIVE Describe the purpose of and procedure for making and responding to requests for adm issions.

388

CH APTER 15

The format of the request is similar to that of interrogatories and requests for production: 1. 2. 3. 4.

caption; title; introductory materials; and list of facts and legal claims that must be objected to, admitted, or denied.

Requests for admissions are governed by Fed. R. Civ. P. 36. A written response is required within 30 days. Unless a written response denying or ob, jecting to a matter is served, the matter is deemed admitted for the purposes of the litigation. It is not llnusual for experienced legal teams to use this dis, covery tool as a trial tactic in hopes that the opposing party will fail to meet the response deadline. In the event the opponent fails to respond, the legal team will find its case has become easier to present and win. Exhibit 15.4 contains a list of proposed admissions that could be included in a request for admissions in a personal injury lawsuit resulting from an au, tomobile accident. Some admissions relate to facts that are easily established and perhaps agreed upon, such as the date and weather conditions at the time of the accident. Failure to respond to these requested admissions would not harm the defendant. Others are facts that must be established to prove the case, such as the defendant's failure to stop at a red light. Failing to respond to that request for admission would result in establishing the defendant's liability for the accident.

Exhibit 15.4 Request for Admissions UNITED STATES DISTRICT COURT _ _ _ _ __ Suzanne Roper Plaintiff

v.

•

• •

•

DISTRICT OF _ _ _ _ __ No.: _ _ _ _ _ _ _ _ _ __ REQUEST FOR ADMISSIONS

•

•

Joel Wilkenson and Mary Smith, Defendants

•

•

Civil Action - Negligence

•

Attorney #097351

•

TO: Joel Wilkenson c/ o Roy Saunders, Esquire Street Address Anytown State You are requested to admit or deny the facts listed below in the time permitted under Fed. R. Civ. P. 36. (1) The accident occurred on April 15, 2018 at approximately 10:30 a.m. at the intersection of 14th and Market Streets. (2) The weather conditions at the time of the accident were clear, dry, sunny with a temperature of 72° F. (3) Plaintiff was crossing the street in the designated crosswalk. (4) Plaintiff was crossing the street and had the right of way because of a green light in her direction. (5) Defendant Wilkenson was operating a white, four-door 2007 Toyota Camry. (6) Defendant struck Plaintiff while she was crossing the street. (7) Defendant Mary Smith was operating a tan, four door 2010 Ford Explorer. (8) Defendant Mary Smith failed to stop at the red light. (9) Defendant Mary Smith struck Defendant Wilkenson's vehicle causing his to strike Plaintiff. (10) Plaintiff was injured as a result of being struck by the vehicle operated by Defendant Wilkenson.

O THER FO RMS OF DI SCOVERY

389

A fact that is admitted or deemed admitted for failure to den y or object is conclu sively estab lished for the purposes of trial. Con trar y evidence can not be p resen ted for consideratio n by the jury. T he best advice for the legal t eam is to include on the calendar th e due date of the response along w ith sufficient reminders to get th e response com, p leted in a tim ely fashion . T here are th ree acceptable responses t o a request fo r admissions: 1. admit the truth of the matt er stated; 2. deny the matter stated and set fo r th altern ate fact s or law; o r 3. object t o the matter requested, sett ing fo rth the specific groun ds fo r the objection . It is gen erally unaccept able for the respon d ing party to state that h e/sh e lacks kn owledge, in formatio n , o r belief as to the tr uth of th e matter. Because re-quest s for admission s are typically u sed as a concluding d iscovery tool to aid in th e p repar ation of t rial, it is unlikely th at the litigan ts would lack kn owled ge of the facts of the case. Where there remain disputed fact s, it m ight be appro-p riate to state that the requ est asks for a con clusion of law o r an application of th e law to the fact s, wh ich is the fun ction of th e jury. Exhibit 15.5 p rovides p roposed responses t o the requested admission s that appear in Exh ibit 15. 4 .

Exhibit 15.5 Answer to Request for Admissions UNITED STATES DISTRICT COURT - - - - - - -

DISTRICT OF - - - - - - -

v.

•

•

No.: _ _ _ _ _ _ _ _ _ __ DEFENDANT WILKENSON'S ANSWER TO REQUEST FOR ADMISSIONS

Joel Wilkenson and Mary Smith, Defendants

• •

Civil Action - Negligence

• •

Attorney #097351

Suzanne Roper Plaintiff

• •

• •

(1) Admitted. (2) Admitted. (3) It is admitted that Plaintiff was crossing the street. It is denied that the Plaintiff was crossing within the designated crosswalk. To the contrary, there is no designated, delineated, or marked crosswalk at the intersection. (4) It is denied that Plaintiff had the right of way and the light was green. To the contrary, the light was not operating properly at the time of the accident. (5) Admitted that Defendant was operating the vehicle described. However, it should be noted that Defendant Wilkenson's vehicle was at a complete stop waiting to make a left turn and waiting for the Plaintiff to cross the street before attempting that turn. (6) Admitted that Defendant Wilkenson's vehicle struck the Plaintiff but only after first being struck by a vehicle operated by Defendant Smith. (7) Admitted. (8) Denied that Defendant Smith failed to stop at the red light. The light was not red. The light was not operating properly at the time of the accident. (9) Admitted. (10) Denied that Plaintiff was injured as a result of being struck by the vehicle operated by Defendant Wilkenson. To the contrary, Plaintiff was injured as a result of her failing to be alert and observe the conditions at the time she crossed the street and because her view was blocked by the transit bus at the corner. Any injury the Plaintiff sustained was a direct result of her own negligence. Further, as there remain disputed material facts, the matter must be submitted to the jury for determination.

390 CHAPTER 15

CONCEPT REVIEW AND REINFORCEMENT

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treatment

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defense medical evaluation (DME) 384

independent medical examination (IME) 384 range of motion

385

OTHER FORMS OF DISCOVERY Introduction to Other Forms of Discovery

A request for examination of a party is limited to those situations where the physical or mental condition of the person is at issue in the case. Requests for admissions are used to obtain agreement to certain facts to avoid the need to present evidence to prove those facts in trial.

Requests for Physical or Mental Examination

Where the physical or mental health of a party is at issue, a defense medical examination may be agreed to or may be ordered by the court upon good cause shown. In personal injury cases, the examination is typically agreed to, and the plaintiff may have some control over the choice of expert to conduct the examination. Where the mental state of the party is at issue, a defense medical ex-amination generally requires a court order after a hearing before the court, except in the most obvious cases of mental disability.

Preparing for and Attending a Defense Medical Evaluation

The defense medical evaluation is an attempt by the defense to determine the legitimacy of the claims being made for personal injuries. Typically, the client will be taken to the DME by a member of a legal team, who will then observe and take notes on the methods and comments of the physician during the examination. It is important for those attending medical evaluations to understand the terminology used, including knowledge of the basic human skeletal structure and terms used with regard to the type of injury claimed, such as range of motion.

Requests for Admissions

A request for admissions is a written request submitted to the opposing side asking for agreement to stipulate to certain facts without the need for a formal proof at trial. Failure to deny a request or file an objection to the request conclusively establishes those facts for purposes of trial.

REVIEW QUESTIONS AND EXERCISES 1. Why is a request for physical or mental exami-nation a discovery tool with limited use? 2. What is the purpose of using requests for admissions?

3. When would trial counsel not want to use requests for admissions with regard to easily agreed--upon facts?

OTHER FORMS OF DISCOVERY 4. When is a request for mental examination an appropriate discovery request? 5. Why might a mental examination be requested in a breach of contract action? 6. Why would a court order be required for a mental examination? 7. What is the relationship between a diagnosis and a prognosis? 8. What is the purpose of medical treatment? 9. Why is the term defense medical evaluation a more accurate term than independent medical examination? 10. What is the advantage of attending a defense medical evaluation with the client?

391

11. Prepare a list of items that should be looked for when doing a review of the defense medical evaluation report. 12. What advice should be given to a client before attending a defense medical evaluation? 13. What is the advantage of havin g a nurse parale-gal attend a defense medical evaluation? 14. What is the advantage of having a nurse parale-gal in a personal injury case? 15. What are the advantages in making requests for admissions? 16. What is the effect of not objecting to or deny-ing a request for admissions?

BUILDING YOUR PARALEGAL SKILLS INTERNET AND TECHNOLOGY EXERCISES 1. What medical resources are available for law-yers who are preparing to attend a defense medical evaluation? Prepare a list for future use. 2. What resources exist on the Internet for vali-dating the credentials of doctors and other experts?

3. Locate an online medical dictionary. Prepare a list of online medical services for future reference.

CHAPTER OPENING SCENARIO CASE STUDY Use the Opening Scenario for this chapter to an-swer the following questions. 1. Who should be involved in the trial strategy discussions? 2. How should the final decisions be made regard-ing the strategic decision on presenting the case?

3. Who should make the ultimate decision on the presentation of the case in trial?

SCHOOL BUS- TRUCK ACCIDENT CASE Review the assigned case study in Appendix 2. 1. List facts and/or law that would be appropriate for a request for admissions. 2. Prepare a list of medical terminology and defi-nitions that would be useful for attending the DME of the child plaintiff.

3. Prepare a form for the paralegal attending the DME to record observations of the exam.

392

CH APTER 15 J/11 /Id

CIVIL LITIGATION TEAM AT WORK See page 18 for instructions on Building Your Professional Portfolio. Forms 1. Create a template of a letter to a client in a per, sonal injury case whom you will be accompany, ing to a defense medical evaluation. Include an explanation of the defense medical exam. 2. Create a form for the paralegal attending the DME to record observations of the exam.

Contacts and Resources 1. List of medical resources available for law, yers preparing to attend a defense medical evaluation 2. List of Internet sites for validating the creden, tials of doctors and other experts 3. Web address of an online medical dictionary

VIRTUAL LAW OFFICE EXPERIENCE SCHOOL BU S-TRUCK ACCIDENT VIDEO: SCHOOL BUS TRUCK ACCIDENT CASE-DEPOS ITION O F MECHAN IC Deposition of the mechanic that worked on the truck that was involved in the accident.

To: Paralegal Intern From: Roy Saunders Case Name: School Bus-Truck Accident Case Re: Request for admissions 1. As we approach trial, it is important to begin streamlining the facts that must be presented through wit, ness testimony. Review the deposition transcript of the mechanic found in the case file. 2. Review the complaint, answer, and sample form for a request for admissions found in FORMS. 3. Prepare a request for admissions addressed to the trucking company. 4. Prepare a request for admissions addressed to the brake manufacturing company. For purposes of this assignment, use the information in the sample complaints and answers, substituting your jurisdiction as the location.

PERSONAL INJURY VIDEO: MANDY STEIN: MEETING WITH JUDGE TO EXCLUDE EXPERT WITNESS Conference in the judge's chambers

To: Paralegal Intern: From: Roy Saunders Case Name: Mandy Stein-Injury on a School Bus Case Re: Conference with Judge on Motion to Exclude Dr. Lee as Expert Witness The trial judge has scheduled a meeting in chambers to review the motion to exclude the use of Dr. Lee as an expert witness. Please attend the conference and take notes on the meeting. Identify any additional research that may be required.

-

•

--

--

LEARNING OBJECTIVES After studying this chapter, you should be able to: 1. Identify and distinguish between legal and factual issues for trial.

2. Prepare a pretrial memorandum.

6. Prepare exhibits for trial presentation .

7. Explain the purpose and procedure of jury investigation.

3. Describe the purpose of a trial brief.

8. Organize a trial notebook.

4. Describe the purpose of doing a cost- benefit

9. Obtain a continuance of a trial date.

analysis of a lawsuit. 5. Explain how to prepare clients and witnesses for trial.

Trial Preparation Postdiscovery to Pretrial

CHAPTER

OPENING SCENARIO With everyone in both offices involved with the school bus cases, the offices began to hold weekly meetings as the trial date got closer. The d ivision of work between the liability issues and the damage issues had enabled each office to concentrate on the specifics of each clienes claims. Discovery had helped to frame many of the remaining legal issues that might come up during trial regarding procedural matters of admission of certain evidence, like the graphic photographs of the injuries suffered by son1e of the children and the issues of liability of third parties who manufactured parts that had failed on the truck. Everyone ai,...-eed that Roy Saunders, their co-counsel, should be the lead attorney in the trial because of his broader trial experience. He asked his paralegal, Emily, to prepare a draft of the comprehensive pretrial memorandum that the trial judge required; he then suggested that each of the other attorneys review the first draft. He was particularly concerned that M r. Benjamin, who was responsible for the damage issues, review the valuations listed for each client fo r pain and suffering and special damages. Mr. Benjamin and his paralegal were asked to be certain that all the electronic devices they intended to use during the trial, including the laptop and projectors, were working. They also had to ensure that they had adequate backups in the event something happened to the laptop, which held the electronic rrial notebook they would depend on to present an organized presentation.

OPENING SCENARIO LEARNING OBJECTIVE Compile a list of the tasks necessary for preparation for trial.

VIDEO INTRODUCTION

Trial Preparation Overview: Postdiscovery to Pretrial After watching the video at www.pearson.con1/goldman.-civil..(itigation~ answer the following questions: 1 . \Xlhen does trial preparation begin/ 2. \Xlhy is credibil ity of clients and witness important!

395

396 CHAPTER 16

INTRODUCTION TO TRIAL PREPARATION Trial preparation begins the moment the legal team meets the client. Initial de-terminations must be made that the client has a valid cause of action and that the statute of limitations has not expired. The legal team must then determine the likelihood of success and the perceived credibility of the client and other wit-nesses, and deal with other evidentiary issues. Because of the time limits imposed by court rules once a case has been filed, careful investigations and evaluation of the case must be done before the case is filed and the clock starts ticking toward the trial date. Under current federal court rules, a trial date is set at the sched-uling conference with the trial judge, which takes place approximately 90 days after the defense counsel enters its appearance, or 120 days after the defendant is served. Many state courts assign a trial date early in the litigation process as well. With the trial deadline clock running, preparation time is limited. The acceler-ated trial deadlines are designed to reduce court backlogs and offer speedy jus-tice, but they add to the stress of the legal team, requiring them to be organized and efficient as well as effective. Having well--thought--out trial preparation and case--handling procedures for litigation helps minimize the stress and anxiety.

IDENTIFYING ISSUES FOR TRIAL

1

LEARNING OBJECTIVE Identify and distinguish between legal and factual issues for trial.

The first phase of trial preparation involves focusing on the legal issues and the evidence of the essential facts of the case, which will be decided by the trier of fact the jury or a judge in a bench trial. During the discovery phase, the litigants share all the information they intend to present at trial to support or defend the lawsuit. A result of the sharing of information may be agree-ment between counsel on some facts or legal issues. These areas of agreement, whether factual or legal, represent things that will not have to be argued or pre-sented at trial. The result is a more focused and potentially shorter trial and, in some instances, settlement of the case before the commencement of the trial.

Legal Issues legal issue Points of dispute on which law is applicable and/or how the law should be applied.

procedu ral issue Issues that arise from the presentation of the trial, such as those involving the application of the Federal Rules of Evidence.

substantive issue Issue that arises from which law is applicable or how the law is applied to the dispute.

claim A right asserted against another for which a remedy is sought in a lawsuit.

Legal issues in a case are points of dispute about which law is applicable and/ or how the law should be applied. Those issues that arise out of the manner in which the case is managed or the trial is conducted are called procedural issues; examples include rulings on the admissibility of evidence and proposed jury instructions. Those issues that arise over how the law on the subject matter of the case is applied are called substantive issues. For example, liability is a substantive legal issue: Do the facts as alleged satisfy the statutory or case law elements for imposing responsibility on the defendant for the plaintiff's inju-ries? Claims are the allegations that all the necessary facts exist to satisfy the legal requirements for liability. An automobile accident may lead to a number of claims for personal injury and property damage by more than one person. In a contracts case, breach of contract is a legal issue. The facts necessary to prove a claim are the existence of a valid contract and the failure to perform as required by the terms of the contract. The first legal issue would be a finding that all the necessary elements of a valid contract are present. Discovery allows the litigants to assess the claims made. Some claims may not hold up once all the facts are revealed. Other claims may have uncontro-verted facts that demonstrate that every element of the legal requirement has been met. The discovery process thus allows the legal team to focus on prov-ing the facts that support the claims made.

TRIAL PREPARATION - POSTDISCOVERY TO PRETRIAL

\V hen investigatio n and d iscover y show that the facts d o not support a claim. the atto rney may voluntar ily withdraw the claim (Fed . R. C iv. P. 4 1). A more likely consequence is for the opposing counsel, having had the ben.. efit of the same d iscovery, to file a motion for sumn1ary judgment (Fed . R . C iv. P. 56). T ypically, after discovery and before trial, both attorneys will file a motion for summary judgment on beh alf of their clients. T h is mo tion fo rces each legal team to foc us o n the le-gal issues and the elements requ ired to prove those issues; each team then com pares the ele men ts with the facts developed through discovery. If the legal teams have tho ro ughly and properly investigated their clients' claims and d efenses, there shou ld be few sur pr ises. When filing the motio n for summary judgment, t he legal teams tell t he court ther e are no d isputed m aterial facts; all that rem ains is the applicatio n of the law to the fac ts and a representation that w hen th e law is applied to the facts, there can be just o ne outcom e-a verdict in their client's favor. Few lawsuits i nvolve o nl y a s ingle legal issue. For example, in a construe, tion contract lawsuit, there may be multiple claims, each having separate legal issues- fo r example, clain1s based o n breach of con tract, breach of warr anties related to the workmansh ip o r goods u sed, o r fra ud an d misrepre.sentatio n as to the q uality of wor kmanship and goods provided. The facts developed through discovery m ay disclose a work change o rder that the cl ien t's spouse signed, autho rizing th e use of substitute goods of a lesser quality. \Vith that document, the legal issues and claim s related to fraud o r b reac h of warran ty as to the quality of goods would be appropriate fo r a motion fo r summ ar y judgment. T he evaluation of the legal cla ims fo r purposes of prepar ing a mo, tion fo r summary judgm ent is a crucial elem ent of trial preparatio n because a successful m otion fo r summary judgm ent will resolve one or mo re legal issues p resented to the court for consideration. That is.sue, a lo ng with the witnesses and eviden ce necessary to p rove it will then not need to be part of the trial presentatio n .

397

wilhdra\'•' the claim Process bywhic.h a part)• to the lawsuil voluntarily w ithdraws or terminates one or more of his claims.

motion for summary judgmcn1 A motion by w hic h a party seeks to terminate the lawsui1 priot 10 trial, alleging 1here are no disputed mate· rial facts aod all thal rema ins is in the application of the law to the facts.

1

Facts Facts are act ual o r alleged events and occurrences. The location of the inci .. dent, the parties involved, the tim e of the accident , and what o r how som e, thing happened are all fac ts of the case. Beginning steps in und erstanding a case are to c reate a timeline of th e facts as related by the client , to supple.. m ent those fac ts with the fac ts obtained fro m witness.es, and to contrast th em wit h the facts descr ibed by the opposing party. Exhibit 16. l is a fact timeline showing contrasting fac ts of a case. After the parties review the documents supplied as a result of discovery and deposition transcripts, there m ay be facts that are no t disputed. For example, there may be agreement as to the date and time of the accident o r the authen .. tidty of repair receipts o r bank records. If the parties agree to facts, they may fo rmally stipulate to facts. That is, those facts will be presented by both s ides to the trier of fact- the jury or the judge acting as trier of fact-as no t contested. With agreement, there is no need to have d ocuments authenticated by the per, son who created them (or under w hose s upervision they were created). If ar eas o f agreem ent are found , fewe r witnesses will need to testi fy. Having fewer witnesses results in s ho rter tr ial.s and m o re attentive juro r s. Find ing a reas of agr eement also results in learning the areas of d isagr eem ent, w here evidence will have to be presen ted. T he legal ream can then focu.s o n w hich wim esses and exhibits are m ost persuasive and determine the s trategy fo r the best way to present those witnesses and exh ib its.

Iacts Actual or a lleged occu1Tences.

events

and

stipulate to facts Fads presented b)• hoth sides 10 the trier of iac1-ju,y or judge acting as trier of fact-as not contested.

398

CHAPTER 16

Exhibit 16.1 Contrasting Fact Time Line

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compl;lint tetler toY.hlsh.

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A timeline of the facts, as shown in Exhibit 16.2, graphically shows w hat elem ents of the case must be proven at trial and who the best witnesses may be to testify concerning those facts. [ f the tim eline is allowed as an exhibit, it also represents a potentially persuasive visual message to the jury of what had to be shown and what was shown by the evidence presented.

Psychological Advantages of Stipulations In a bench t r ial there is no jury; instead, t he judge sits as the fact finder replacing a ju ry and hears the evidence, applies the law to the facts, and makes a find ing of facts, which is equ ivalent to a jur y verdict. Judges favo r.ably view stipu lation s and every effort of the parties and their attorneys to streamline the case because it can save substantia l jud icial t ime. Many j udges m ai ntain a good poker face in the courtroom, but when meeting in chambers the same judges m ay show some favo rit is m to the attorney wh o seem s to be moving the case along and disdain for t he attorney who is drag.ging out the p rocess. In a jury trial, the judge acts as the facilitator of the p rocess, applying t he law to the procedural aspects of the trial and ultimately to the finding of facts m ade by the jury in its deliberations. Jurors have certain expectations of what a t rial is like from having seen television and movie depictio ns of cou rtroom action. For example, juries expect to watch an adversarial, contentious dis.pute unfold before them . However, the announcement in court of facts that are presented by agreement of the parties demonstrates to the ju ry that while the litigants have a dispute, they a re not so unreasonable as to be unable to

TRIAL PREPARATION

399

POSTDISCOVERY TO PRETRIAL

Exhibit 16.2 Time Line of Facts

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Source: Reproduced with permission from LexisNexis.

agree on some issues. This may serve to diminish any negative notions the jurors have about those who bring lawsuits. It can also result in the belief that the parties tried to resolve as much of their dispute as possible. The determi-nation of the unresolved facts is left to the jury.

PRETRIAL MEMORANDUM A pretrial memorandum is the lawyer's summary of the case prepared as a guide for the trial judge. The memo includes the substantive, procedural, and factual issues; the areas of agreement of counsel; and how long the trial will take. As shown in Exhibit 16.3, it can be a simple form. A more thorough pretrial memorandum may include a comprehensive list; an example is the pretrial memorandum format used in the U.S. District Court for the Middle District of Pennsylvania shown in Exhibit 16.4. A more formalized document is the pretrial order prepared and submit-ted jointly by opposing trial counsel and signed by the trial judge as an order of court, shown in Exhibit 16.5. It includes proposed questions for jury selection, proposed jury instructions, stipulated and disputed facts, legal issues, evidentiary issues, deposition testimony that will be read into the record , and other procedural matters. The required details vary from court to court and even among judges in the same jurisdiction. Therefore, before submission, local rules must be checked for compliance with the standing orders of the trial judge; for example, see the requirements of Judge Hart shown in Exhibit 16.6.

LEARNING OBJECTIVE Prepare a pretrial memorandum.

2

pretrial memorandum A summary of the case prepared as a guide for the trial judge on what the issues are, what the areas of agreement of counsel are, and how long the trial will take.

400

CHAPTER 16

Exhibit 16.3 Pretrial Memo Form Used in Connecticut PRETRIAL MEMO

I

INSTRUClklNS

J0.E$-'1 R$v. 10-06 P.8.,§§ 14--13, 14•14

COURJ USE ON!,'¥.. PAETMEM

E~h PM'/ tl';;wrung ~ ~ig,$$ or~ p.my'$ ~'"'Y $h;,IJ oomoifJto Par! I be/aw Md air lh6 commeneemMI or the p,et.,iW ~tt}o(J gi'vd a Cl)(fy ro lt>eJudge judge rrlaf releree end u, eac.t, orherparry. Atta.lANO

DAMAGES OR DEMAND (e.g. Injuries/

IF APPLICABLE

LASJ MEDICAi. E)W.C PERtCANE'NCY Of INJUH!E$.\.IF£ EXPEC TANCY

REASON

COST

AGEOf PARIY

EXPLANATION

·1. Doctor(s)

2. Hosp;13l(s)

SPECIALS

3. Subtotal (Add f & 2) 4. Future

MeO.lcal LOST WAGES

5. Wages

FUTURE CAPACITY

6.0THER

(Prop. Dam.. etc.) 7. TOTAl.

Copies of all medical bills and repons have been furnished to the Oefendantls) (Page 1 Of 2)

n ves

O NO

TRIAL PREPARATION

POSTDISCOVERY TO PRETRIAL

Exhibit 16.4 Pretrial Memorandum Format, U.S. District Court for the Middle District of Pennsylvania APPENDIX B PRETRIAL MEMORANDUM FORMAT UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA • • •

• •

•

v.

: CIVIL ACTION NO. •

• •

•

PRETRIAL MEMORANDUM Date conference was held by counsel: A. A brief statement as to federal court jurisdiction. 8. A summary statement of facts and contentions as to liability. C. A comprehensive statement of undisputed facts as agreed to by counsel at the conference of attorneys required by Local Rule 16.3. No facts should be denied unless opposing counsel expects to present contrary evidence or genuinely challenges the fact on credibility grounds. The parties must reach agreement on uncontested facts even though relevancy is disputed. D. A brief description of damages, including, where applicable: (1) Principal injuries sustained: (2) Hospitalization and convalescence: (3) Present disability: (4) Special monetary damages, loss of past earnings, medical expenses, property damages, etc.: (5) Estimated value of pain and suffering, etc.: (6) Special damage claims: E. Names and addresses of witnesses, along with the specialties and qualifications of experts to be called. F. Summary of testimony of each expert witness. G. Special comment about pleadings and discovery, including depositions and the exchange of medical reports. H. A summary of legal issues involved and legal authorities relied upon. I. Stipulations desired. J. Estimated number of trial days. K. Any other matter pertinent to the case to be tried. L. Pursuant to Local Rule 16.3 append to this memorandum a prenumbered schedule of exhibits, with brief identification of each, on the clerk's Exhibit Form. M. Append any special verdict questions which counsel desires to submit. N. Defense counsel must file a statement that the person or committee with settlement authority has been notified of the requirements of and possible sanctions under Local Rule 16.2. 0. Certificate must be filed as required under Local Rule 30.10 that counsel have met and reviewed depositions and videotapes in an effort to eliminate irrelevancies, side comments, resolved objections, and other matters not necessary for consideration by the trier of fact. P. In all trials without a jury, requests for findings of both fact and law shall be submitted with this Memorandum as required under Local Rule 48.2.

401

402

CHAPTER 16

Exhibit 16.5 Final Pretrial Order for the United States District Court for the Northern Distri ct of Illinois

United States District Court For The Northern District of Illinois Eastern Division

Austi11 Ben11aza Plaintiffi-Ll,

Civil Action No. 04-CTV-004578 V.

Judge Caroline S. Cascino Buddy Smith, Defendant.

FINAL PRETRIAL ORDER This matter ha,,ing come before the court at a pretrial conference held pursuant to Fed. R. Civ. P. ( 11Rule") 16, and Je1111ifer L. Abernathy, 565 West Adatns St., Chicago, IL, 3 I2 906-5000, Jay C. Carle, 565 West Adams St., Chicago, IL, 312 906-5000, and Katluyt1 M. Smith, 565 West Adams St., Chicago, IL, 312 906-5000, l1aving appeared as counsel for plaintiIT(s) a11d J. Justin Boyd, 565 West Adams SL, Chicago, IL, 312 906-5000, a11d John G. New, 565 West Adams St., Chicago, IL, 3 12 906-5000, having appeared as cou11sel for defendant(s), the follovving actions v.1 ere taken: (1) This is an action for battery and assaL1lt and tl1e jurisdiction of the court is invoked under 28

U.S.C. § 1332. Jurisdiction is disputed. The claim against the Village of Kenilworth was dismissed witho11t prejudice. (2) The following stipulations and statements were submitted and are made a part of th is Order: (a) a comprehensive stipulation or statement of all uncontested facts, wbjcb will become a part of the evidentiary record io the case (and which may be read to the j ury by the court or any party): (i) Plaintiff Bennaza is a citizen of Illii1ois; (ii) Dc fc11dant S1ni tl11s a citizen of Wisconsin; (iii) PlaintiffBennaza 's rned ical treatments afte r the incident in litigation cost $75,100, of whicl1 $60,000 -v,,as paid by insurance, and the remainder paid by plai n ti ff himself; (iv) Plaintiff Bennaza was stopped by Defendant Sn1ith for an allegedtraffic violation in the Village of Kenilwo11h on September 21, 2004; (v) Defendant Smith is ernployed by the Village of Kenilworth Police Depart1n ent as a Patrolman; (vi) Illinois la\v applies to the substantive claims by I)lai ntiff;

T RIA L PREPA RATI ON

POSTDI SCOVERY TO PRETRIA L

403

Exhibit 16.5 (continued) (b) a11 agreed state1ne11t 01· statements by each party of' the contested issues of· fact and law and a stateme111 or state111ents of contested issues of fact or law not agreed to: (i) whether plai11tiff has satisfied the jurisdictional rnir1imum for di,,ersity jurisdiction as a n1atte1· of law;

(ii) whether the conduct by Defendant Sn1ith constitutes the tort of battery; (iii) whether the conduct by Defendant Smith constitutes the tort of assault;

(iv) whether the conduct by Defendant Smith was privileged 1.1nder Illinois law or within an in1mt1nity conferred by Illinois law.

(c) except for 1·ebt1ttal exhibits, neither party wi 11 offer exl1ibits, demonstrative evidence or experiments into evide11ce, except for the following:

(i) flashlight used by Defendant Smith (ii) de111011stratio11 by Defendant S111ith of his 111oveme11ts and tl1ose of Plai11tiff (iii) Defendant Smith's personnel 1·ecords or sumina1ies thereof, the authenticity of which will be stipulated before trial

(d) a list or lists of names of the potential witnesses to be called by each party, with a state1nent of any objections to calling, or to the qt1alifications of, any witness identified on the list:

Plaintiff: Austi11 Bennaza Defend ant: William H . "Buddy" Smith Treating pl1ysician or battender (Frank Salinas, 565 West Ada1ns St., Chicago, IL, 312 906-5000) (expert, if physician) Anger management witness (Patricia A. Culliton, 565 West Ada1ns St., Chicago, IL, 312 906-5000) (expert) Ambulance driver or attendant (Nathan B. Hinch, 565 West Adams St., Chicago, IL, 312 906-5000)

(e) no expert witnesses wi ll be called by either party, except as indicated in subsectio11 (d); qualificatio11s of experts ide11tified ir1 subsection (d) a1·e stipula,ted (t) a list of all depositions, or portio11s tl1ereof, to be read into evidence a11d statements of any objections thereto: none, except as 1nay be t1sed for i111peachme11t;

(continued)

404 CHAPTER 16

Exhibit 16.5 (continued) (g) special damages have been stipulated; (h) no clai1ns or defe11ses have bee11 abando11ed by a11y pa11y except for tl1ose co\rere(i by tJ1e stipulations set forth above;

(i) eacl1 party has provided tl1e following: (i) trial briefs except as othenvise ordered by the court (none) pursuant

to cot111 order); (ii) one set of rnarked proposed jury instructions, verdict ton11s and

special interrogatories, if ru1y; and (iii) a list of tl1e questions tl1e party requests tl1e cou1t to ask prospective jurors i11 accordance witl1 Fed.R.Ci\r.P. 4 7(a); (k) the parties have engaged in settlement negotiations, but further t1egotiations are not likely to be productive·

(1) each party has completed discovery. Absent good cause sl1ov,,n, no further discovery s11all be permitted; and

(m) no motions in limine are anticipated. (3) Trial of this case is expected to take one hour and forty 1nint1tes. Trial will commence at 6:00 PM.

(a) Plaintiff shall have five minutes for an opening statement, 15 minutes to present his case in chief, 15 minutes to cross examine Defendant's witnesses, and five minutes for closing argurnent; (b) Defendant sl,al I have five 111inutes for

an openjng statement, 15 n1inutes to cross examine

Plaintiff s witness, 15 minutes to present his case in chief and five minutes for closing argument~ (4) [Indicate the type of trial bJ' placing an X i,i the approp,·iate box]

(X] Jtlry

LJ Non-jtlIY

(5) The part1es reco111mend that 75 jtirors be selected; the jurors \Vilt have been selected and v.rill be seated at the cornn1encement of the trial. (6) The parties agree tl1at the issues of liability and damages should 11ot be bifurcated for trial. (7) LPu1--.si1ant to 28 U.S. C. §' 636(c), pa,·tie.v may consent to the ,·eassign,nent oj'this ca.se to a

r11agist1·ate.judge who may co11duc:t anJ' or all pr·ol·eedings i11 ajt11y 01· nonju1y civil matte,· and o,,.der 1he enlry ofjudg,11ent in the C£1se. Indicate be/01,v if the pal'·tie.~ con.se11/ to .si,ch a reassign111ent. l [_] The pa1ties consent to this case being reassigned to a magistrate judge for trial.

(8) This Order \¥ill co11troJ tl1e course of the trial and 111ay not be an1ended exce1)L by consent or tl1e parties and the cot111, or by order of the court to prevent 1nar1ifest injt1stice.

T RIAL PREPARATION- POSTDISCOVERY TO PRETRIAL

Exhibit 16.S (continued) (9) Possibility of senlemcm of tliis case was considered by die parties.

( 10) One photographer (Henry H. Perritt, Jr.) shall be allowed to photograph the trial.

United States District JudgJJ11

Date: I December 2004

fA11or11eys are 10 sign thejorm before prese11ti11g it 10 the court.]

Attorney fo r Plain ti ff

Attorney for Defendant

405

CHAPTER 16

406

Exhibit 16.6 Standing Order of Judge Hart from the Eastern District of Pennsylvania JUDGE HART'S STANDING ORDER RE PRETRIAL STIPULATION (JURY TRIAL} In lieu of pretrial memoranda or a Final Pretrial Order, under Local Rules 16.1 (d}(1} and (2), a Pretrial Stipulation shall be submitted, containing the following: 1. Agreed facts. A conscientious effort should be made to narrow the areas of dispute. 2. Each party's disputed facts. 3. Each party's exhibits, as marked for trial. (Any objections to authenticity should be noted or will be considered waived. Exhibits shall be provided to the Court in the form of two, jointly prepared, loose leaf Exhibit Books, each separately numbering Joint Exhibits, Plaintiff's Exhibits, and Defendant's Exhibits.} 4. Each party's witnesses and the subject matter of the witness's testimony. (PLEASE NOTE: IF YOU WILL BE USING VIDEO EQUIPMENT TO PRESENT THE TESTIMONY OF A WITNESS, YOU MUST EITHER SUPPLY THAT EQUIPMENT OR REQUEST AT LEAST TWO WEEKS BEFORE TRIAL THAT THE COURT RESERVE EQUIPMENT FOR YOU} 5. Unusual issues-contentions and authority. 6. Proposed voir dire questions, requests for jury instructions, and a proposed jury verdict form. Counsel shall make a good faith effort to agree upon as many of these items as possible. (THESE ITEMS ARE TO BE SUBMITTED ON DISK-WORDPERFECT IF POSSIBLE-AS WELL AS IN HARD COPY.} 7. The signed approval of trial counsel for each party. IT SHALL BE THE RESPONSIBILITY OF PLAINTIFF'S COUNSEL TO CIRCULATE A DRAFT OF THIS PRETRIAL STIPULATION AT LEAST ONE WEEK BEFORE IT IS DUE.

TRIAL BRIEF trial brief Document presented to the court setting forth a legal argument to persuade the court to rule in a particular way on a procedural or substantive legal issue.

3

LEARNING OBJECTIVE Describe the purpose of a trial brief.

WEB RESOURCES ·

Contrast and compare the Wyoming Rules of Professional Conduct for Attorneys at Law, Ru le 3 .3. Candor toward the tribunal, at http://courts .state. wy. us/CourtRules_ Entities. aspx?RulesPage=Attorneys Conduct.xml, w ith the ABA Model Rules of Professional Conduct, 3 .3 Candor to the Tribunal, at http://www.abanet. orglcpr/ mrpc/ rule_3_3 .html, and the ethical rules in your jurisdiction.

A trial brief is a document presented to the court that sets forth a legal argu-ment and attempts to persuade the court to rule in a particular way on a pro-cedural or substantive legal issue. In some courts, trial briefs are included as part of th e pretrial memorandum. In others, trial briefs are submitted at the commencement of trial and others durin g the trial itself when an issue arises. The trial brief submitted by each attorney presents the statutes and case law that support each attorney's legal position. For example, an area of frequent disagreement is th e admissibility of evidence. The attorneys may disagree over the admission of photographs that depict the scene of an accident. Some of the photographs may be ex-plicit, showing blood pools and severed body parts. One attorney will want the jury to see the photos because they depict what the p laintiff experi-enced; the other will ar gue that the photos should be excluded because they will cause the jurors to react emotionally. The judge will then be required to resolve the issue. The trial brief submitted by each attorney will present the statutes and case law that support the position for admission or exclu-sion of the evidence. Local rules and the standing orders of the particular trial judge should be consulted to determine th e form and content required fo r a trial brief. With a streamlined trial in min d, judges prefer to rule on as many of the procedural, substantive, and factual stipulation issues as possible before the trial begins. Raising the issues during trial, in the presence of the jury,

TRIAL PREPARATION- POSTDISCOVERY TO PRETRIAL

407

ETHICAL Perspectives ETHICAL DUTY Of CANDOR In preparing any submission to the court, the attorney is under an ethical obligation of candor toward the court. It is not acceptable to fail to submit a controlling case o r statute simply because it does no t favor the position being argued. It must be revealed even if the opposing attorney has not discovered it.

\.Yyoming Rules of Professional Conduct for Attorneys at

la"'

Rule 3.3. Cand or toward the tribunal. A lawyer shall not knowingly: (1) make a lalse statement of facl or law to a lribuoal or lail to cor,ect a false statement of material fact "' law previously made to the tribunal by the lawyer. (2) lail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the clienl aod nol disclosed by opposing counsel; or (a) offer evidence that the lawyer knows to be false. If a lawyer, the law),er's client, o r a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, d isclosure to the tribunal. A lawyer may refuse to offer evidence, o ther than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and w ho knows that a person intends to engage, is engaging o r has engaged in criminal or fra udulent conduct related to the pro, ceeding shall take reasonable remedial measures, including, if necessary, d isclosure to the tribunal. (c) The duties stated in paragraphs (a} and (b} contin ue to the conclu, sion of the proceeding, and apply even if compliance requires d isclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that w ill enable the tribunal to make an informed decision, whether or not the facts are adverse.

takes time and may draw attentio n away from the actual issues being lit igated. Once a trial begins, judges want to keep these no n.-fact.-finding issues fron1 the ju ry to avoid any potential influence o n their fact.-finding obligation.

COST- BENEFIT ANALYSIS OF A LAWSUIT Jn most civil lawsuits, each party is responsible for paying his own atto rney's fees, win o r lose. This is called th e uAmerican rule." The court can award lawyer's fees to the winning party if there is statutory autho rization o r if the parties have agreed to this arrangen1ent: for example, a contract may include a clause that requires the losing party to pay the litigatio n costs of the winner. If a party has acted maliciously o r pursued a frivolous case, that party may be req uired to pay the legal fees of the other party. An attorney in a civil lawsuit may represent the plaintiff on an ho urly. project, or contingency.-fee basis . Hourly fees may range from $ 100 to

LEARNING OBJECTIVE

Describe the purp()se of d o ing a cost- benefit analysis of a lawsuit.

4

408 CHAPTER 16

contingency-fee agreement Fee agreement whereby the lawyer receives a percentage of the amount recovered for the plaintiff.

cost-benefit analysis Process by which a litigant determines the costs of pursuing litigation and compares them to what is likely to be gained.

$2,000 per hour, depending on the type of case, the lawyer's expertise, and the locality of the lawsuit. Under a contingency-fee agreement, the lawyer receives a percentage of the amount recovered for the plaintiff. Contingency fees may range from 20 to 50 percent of the award or settlement. Courts may limit the contingency fee in cases involving minors or other incompetent par-ties, and in some jurisdictions, the percentage fee is reduced as the amount of the award increases; for example, one--third on the first $100,000 and 20 per-cent on the next $150,000, with some caps as low as 10 to 15 percent of the remainder. Lawyers for defendants in lawsuits are typically paid on an hourly basis. The choice of whether to bring or defend a lawsuit should be analyzed like any other business decision. This includes performing a cost-benefit analysis of the lawsuit calculating what can be gained at what cost. For the plaintiff, it may be wise not to sue. For the defendant, it may be wise to settle. In de-ciding whether to bring or settle a lawsuit, the following factors should be considered: • • • • • • • • •

the probability of winning or losing; the amount of money to be won or lost; lawyers' fees and other costs of litigation; loss of time by managers and other personnel; the long--term effects on the relationship and reputation of the parties; the amount of prejudgment interest provided by law; the aggravation and psychological costs associated with a lawsuit; the unpredictability of the legal system and the possibility of error; and other factors unique to the parties and lawsuit.

CLIENT AND WITNESS PREPARATION LEARNING OBJECTIVE 5 Explain how to prepare clients and witnesses for tri aI.

PRACTICE TIP If at al I possible, arrange for the clients and witnesses to arrive early enough to enter the courtroom and see the space while court is in recess. Anxiety about testifying in court can be reduced if everyone has had a chance to see, feel, and become comfortable in the courtroom before testifying.

Paralegals work with the trial attorney in preparing clients and witnesses for trial. The difficult discussions with clients and witnesses relate to per-sonal style and include such things as the appropriate attire, hair, makeup, and demeanor for court. Without being judgmental, the paralegal may need to ask the person to wear a long--sleeved blouse to cover tattoos or slacks with a traditional waistband so undergarments are not visible. A good approach for this sensitive topic is to describe the courtroom, the judge, jury, and other staff in the courtroom. It may also help to describe what takes place in the courtroom. Sometimes using an analogy will be enough for the client or witness to understand that they must be dressed to impress and on their best behavior. Judges and jurors will be making decisions about credibility and, potentially, will arrive at a verdict based in part on their perception of the people who appear before them; after all, they have no knowledge of the people's prior behavior or belief systems except as they relate to the trial. Clients and witnesses also need to be reminded of the difference between conversing and giving sworn testimony in court. In court, when witnesses speak, they are responding to a question they have been asked that is being stenographically recorded by a court reporter. Because the court stenogra-pher is taking down the words being spoken, only one person may speak at a time. The witness may not talk at the same time as the other person, as frequently occurs in daily conversation when people anticipate what another will say and respond before that person finishes speaking.

TRIA L PREPARATION- POSTDISCOVERY TO PRETRIA L

Checklist~

409

PRETRIAL INSTRUCTIONS

• Tell the truth. •

If you don't understand the question, say so; otherwise, the answer given wil I be assumed to be your response to the question asked.

•

If you don't know or can't remember, say so.

•

Never guess.

•

When you hear the word objection, stop talking and wait for instruction from the attorney or the judge.

The process of direct and cross;examination should be explained. Give specific examples of leading questions asked on cross;examination to dem; onstrate the importance of listening to and responding to the questions. Encourage clients or witnesses to think before responding, pause momentarily to allow their attorney to make any objections to the question, and wait until the judge decides to sustain or overrule the objection before saying anythingand if the objection is sustained, not to answer but to wait for another question. Provide witnesses with copies of their prior statements and depositions. It is important for clients and witnesses to review these statements and de; position testimony. The testimony given at trial will usually cover the same areas as in the deposition and be measured against those prior statements. Explain that any inconsistency will be used to impeach them or attack their credibility. The paralegal can also review the types of questions that will be asked of the client and the witness. Some think it is good practice to rehearse ques; tions and answers with clients and witnesses. Others think too much re; hearsal results in testimony that sounds scripted and over;prepared, which may cause the jury to doubt the witness's sincerity. Follow the supervising attorney's guide, but in no event should the paralegal instruct the client or witness how to testify. Some special preparation applies to use of subpoenas. Typically, all wit; nesses will be served with a subpoena to compel their attendance at trial. However, to keep friendly witnesses friendly, it is wise to advise them that a subpoena is going to be personally served on them and to explain why it is important to do so. Nothing changes a friendly witness to a hostile one more quickly than unexpectedly being served with a subpoena in the workplace. Jurors may feel that a witness has more credibility if the person is there involuntarily instead of as a cooperating witness. Some trial attorneys may attempt to call the credibility of the witness into doubt with questions like, "Isn't it true you gave up a day of work to travel all this way to court to help your friend?" The witness can respond, truthfully, "No, I was ordered to attend by subpoena." Exhibit 16.7 is a standard form subpoena from the Southern District of Texas. Note that subpoenas generally require the wit; ness to appear on the first day of trial and remain until called.

Placing Witnesses on Call Depending on the length of the trial, the potential of settlement early in the trial, and the willingness of the court to accommodate them, witnesses avail; able on short notice may be placed on call. Before placing witnesses on call,

410

CHAPTER 16

Exhibit 16.7 Subpoena Duces Tecum in Fillable PDF Format Available Online AO 88B (Rev. 02/ 14) Subpoena ro Produce Documents, Infon11ation, or Objects or to Penuit 1nspecrion of Pren1ises in a Civil Action

UNITED STATES DISTRICT COURT for the

) ) ) ) )

I'fa;ntiff v.

Civil Actio11

o.

)

J)efendant

SUBPOENA TO PROl)UCE llOCU MENTS, I NFORIVlATION, OR OBJECTS OR TO PERJ\tllT INSPECTION OF PREIVIISES IN A CI\'IL ACTIOX

l'o: (!1la111e ofperson to \Vhorn tl1is s1dJpoe11a is directed)

O Prodi1ction: YOU ARE COI\illVIANDED to prodt1ce at the tirne, date, and place set tortl1 belo\\' tl1e t'ollo\ving documer1ts, e lectronically stored information, o r objects, and to permit inspection, copying) testing, or sampli11g of the material:

I Place:

l)ate a11d 'l'ime:

l O l ~zspection ofPren1ises: YOU ARE COMMANDED to permit entry 011to tl1e desig11ated premises, la11d, or other propert)' possessed or controlled by yot1 at the ti111e, date, and location set forth below, so that the reqtiesti ng party may inspect, 111easLLre, survey, photograph, test, or sample tb.e property or any desjgnated object or operation 011 i t. Date and 'l'i111e:

Place:

Tl,e fol lo\~/ing provisions o·fFed. R . C1v. P. 45 are attached - Rt1 le 45(c), relating to tt1e place of compliance; R ule 45(d), relating to your protection as a person su~j cct to a subpoena; and Rule 45(c) and (g), relating to your dut)1 to

respond to this subpoena and the pote11tial cor1Seqt1er1ces ot' not doi11g so. D ate: (~'LEJ~K CJF C~OURT

OR ,erson ,,,ho issues or 1·equests this subpoena If this SLLbpoena comman(ls the production of docun1ents, electronically storec.i information, or ta11gible things or the ir1spection of pre111ises before trial, a notice and a copy of'tl1e subpoena ml1st be served on each part)' ir1 tl1is case before it is sen ,ed on the person to \vho1111t is directed. Fed . R . Civ. P. 45(a)(4).

TRIAL PREPARATION- POSTDISCOVERY TO PRETRIAL

Exhibit 16.7 (continued) AO 38 (Jt1:>v, 0?.114)

Subpffllployed

O Part·tlme

O At home O &udent

O Retired QO!he
.o•,est1 .. ~u" that I did ""-" .;.ook1n c b~ck .:.___~to see v c~ w~ter oc-n..,u:np~1c~ va2 U!lc Q. Okay. l!Ave you talked to anyofte the ccu~ty •h-~t •hia ca••? A. No, 01.r, o~he..r tbac our r~sk «.aaaqemen~ o fi1Ger •~i a.y d1rea~or. o. l~ ~b~t leth Joedan? A.

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A..~d wl,s t d>.d :,rou talk to her abou-> ~. J'~• ~ whl>t ~hi, 10 rel"t~oa to. Sile wao -- I c ~llcd he~ the !My that I wa, not~t!c~ ot ~e, ~nd ,he

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went ~o :h~ ~~:.e. Q.. A:ld d.14 ~be ,pe.u :o a.ny r-ep:c~ca~-o._t1ve a.t t:h.e

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wh•t o~htitr br••k• th•~ m19h~ h•v• oceu-~~•d dut ng Lh•t

•

Source: Reproduced with permission from LexisNexis.

and documents, sometimes in the tens of thousands of pages, on their laptop computer to find pertinent material for examination or cross--examination of a witness. Exhibit 18.2 shows another way in which litigation support software in this case, Sanction from LexisNexis is used to display part of a transcript and the video presentation at the same time.

•

445

446 CHAPTER 18

WORKING WITH COURTHOUSE TECHNOLOGY STAFF LEARNING OBJECTIVE 2 Interact with courthouse information technologists to plan for the use of equipment at trial.

Within each courthouse and each courtroom are numerous people more than willing to help the legal team if they are properly approached and consulted. The people working in these areas have a substantial amount of technical knowledge because they work in their area of expertise on a daily basis. Occasional users of technology, like members of a litigation trial team, cannot expect to have the same amount of expertise, unless they also spend considerable time learning the ropes. And even then, courthouse technology staffers can make the process flow smoothly because they are familiar with the idiosyncrasies peculiar to their courthouse's installation. Exhibit 18.3 shows an example of how the U.S. District Court for the Eastern District of California invites users to become familiar with the elec, tronic support in the courtroom. The IT or technical support office should be the first place to go or contact if any technology will be needed or used in the courtroom, whether it be in a deposition or a trial. Find out what the procedures are first. Members of the support staff usually know how the different judges feel about the use of technology. Some may not approve of large,screen displays, whereas others may think that a single large,projection screen is appropriate. Some may have individual monitors all over the courtroom and yet not want them used for things like presenting a video deposition, preferring instead a single monitor placed for the judge and the jury to view. The technical support person may also be the one to help clear the hard, ware through security, saving time and stress on the day of trial by getting everything into the building in time to set it up and try it out beforehand. Remember, courtroom IT staffers usually hold the master keys to unlock the courtroom. It is also an advantage for the legal team to have someone who speaks the same technical jargon and can interface at the same knowledge level. A little goodwill can go a long way.

Clearing the Right to Bring in the Equipment Beforehand Anyone who has been in a courthouse in the past few years knows of the increased security measures in place: metal scanners, X,ray machines, and briefcase searches. Anything out of the ordinary, particularly electronic equipment, can result in special scrutiny. In the ideal setting, the only thing the legal team needs to bring is the pertinent CD, videotape, or other elec, tronic storage media-all the equipment is provided by the courthouse. Rarely does everything work so s1noothly as the ideal. Most attor, neys carry the electronic files on their laptops. The trial presentation plan might be to use the software and files on a laptop by connecting it to the courtroom equipment with a cable. Where the court system is not com, patible or the equipment is not provided, the legal team must bring all the needed equipment into the courthouse. It is highly recommended that the security office be contacted ahead of tin1e to learn the policy and procedures for bringing equipment into the courthouse and setting it up. In a number of courthouses, it means using the loading dock of the courthouse or other alternate entrance and waiting for clearance. Pre,clearing equipment can save valuable time on the day of trial, not to mention ensuring that everything will work as p lanned.

THE ELECTRONIC COURTROOM AND TRIAL PRESENTATION

447

Exhibit 18.3 Electronic Courtroom of U.S. District Court for the Eastern District of California Website

UNITED STATES DISJiRICT CO RT Easte1·n District of Califo1·nia Chief Judge Lawrence J . o ·~ eill Clerk of Court r\larianne ~Iatberlr•

Al Judges Consent to Proceed Before a MagtStrate Judge

About

I

Location

I Contact

Website Suggestion?

~ls_ea_~_h~~~~___.I 9

Home i. Judges • Electronic Courtroom

Electronic Courtroom of Eastern District of California OVERVlEW

Contacts Court Agency Information Court Calendar Court Reporters I Transcripts CVB Information

This document is intended to provide you \'11th an overview of lhe court aud1e>-v1sual evidence presentation systems The systems are available for use 1n both the o ,stnct and Magistrate Courtrooms ,n Sacramento The follo,ving provides speafic details regarding the equipment and It's uses. This document may also serve as a reference to bnef clients and \•11tnesses. In order to reserve equipment 1l 1s recommended that attorneys first contact the appropriate court room deputy Attorneys should arrange through the court room deputy a tJme to meet wrth court Information Technology staff Appointments ideally should be scheduled at teas! a week prior to court. Audio Syst ems

Electronic Courtroom Judicial Conduct & 01sab1lrty

The courtroom audio systems consist of several components. 1nciud1ng: microphones and overhead speakers. an infra-red interpretation and heanng impaired reinforcement system, auxiliary audio inputs, and an audio conferencing system The maJor audio components are lrsted belov,

~,1ot1on Schedule Op1n1ons

Mrcrophones/Sgeakers

Seminar Disclosure Info

Microphones are located at Judge and courtroom deputy benches as \'/ell as counsel tables The microphones have touch pads ,vhich mute sound ,vhen pressed. Normal operation resumes ,vhen lhe touch pad 1s no tonger pressed Although lhe microphones are sound sensrtJve, users should remember to speak no further than 12" a\•1ay from the mouthpiece to achieve optimal clanty

VDRP

All overhead speakers in the courtroom normally transmit sound during court proceedings. The court room deputy may control sound output to speafic areas of the court room from an AMX control panel A sidebar microphone is also available at lhe ,vitness bench The courtroom deputy presses the bench conference button from the AMX control panel so that \Vhrte noise 1s transmitted over lhe speakers.

lnterpreter/Heanna Impaired Systems Each courtroom is equipped ,•nth interpreter and heanng impaired systems The systems use infrared technology \Vh1ch transmits sound to headset users. By selecting Channel ·1· a headset user hears lhe court interpreter proceedings By selecting channel ··2... a headset user hears a sound-enhanced version of all court proceedings

Audio Teleconferencing

The Courtrooms are equipped 1,vith a Gentner-724 audio conferencing unit. The teleconferencing reature allo,vs callers from outside lhe courtroom to participate rn court proceedings. Audio from the teleconference is transmrtted over the Courts overhead sound system Control of teleconference features can be made vra an AMX touchscreen control panel located at the courtroom deputy's bench. Control features include. On/off Volume control Pnvacy (Mute) Arrangements to ulJt12e audio conferencing must be made V'llth lhe Courtroom Deputy

Source: Reproduced with permission from LexisNexis.

448 CHAPTER 18

What Happens When the Lights Go Out

PRACTICE TIP Al I programs in the Microsoft Office Suite, including PowerPoint, offer on Ii ne tutorials to help users learn how to use the programs.

Even the best plans can be sidetracked when the equipment fails or when the power needed is not available. In many parts of the country, the power com-pany' s reaction to excess power demand is to reduce the power (sometimes called a brownout) when the voltage is reduced. Some equipment will work at a lower--than--optimum voltage, while other items must have a constant power supply. For example, many homeowners have found their refrigerators not working after a brownout because the motors, unable to operate at the lower voltage supplied by the power company, have burned out. While there are options like battery--powered backup systems, these may not be practical. Therefore, in anticipation of ''when all else fails,'' it is always good to have backup hard copies of graphs and charts. Many legal teams bring backups of important files and software on extra laptop computers, just in case. Particularly well--prepared or overly con-cerned legal teams check the equipment in advance and bring extra bulbs for the computer projector; they may even bring backup projectors, monitors, and, in some cases, printers. To paraphrase an old adage, if anything can go wrong, it will, at the worst possible moment and in the middle of trial.

USING TECHNOLOGY TO PRESENT THE CASE Presentation and Trial Graphics LEARNING OBJECTIVE Understand the use of presentation graphics programs.

J

WEB RESOURCES For PowerPoint training options, see PowerPoi nt training at the Microsoft Office website: http://office.mi crosoft. com/en-us p resen tatio n g raphics Visual aids used to enhance an oral presentation.

It has been said, one picture is worth ten thousand words. Properly prepared graphics are an excellent way of telling a story and making a point, whether it be to a jury, a client, or a group of concerned residents in a public meeting. Conversely, poorly prepared graphics can be boring and can distract from the main message. Nearly everyone has seen PowerPoint slides used as part of a pre-sentation. Some slides hit home and make everyone in the audience wish they had copies. Others convey a confused message at best or offer a few minutes of sleep to the audience at worst. More and more people use graphics in presenta-tions as the software to create them becomes more affordable and easier to use. Among the most commonly used presentation graphics software pro-grams are those included as part of the office suites of programs from Microsoft Power Point and Corel Presentation. These programs are used in many law offices to create high--quality slide shows and drawings that include text, data charts, and graphic objects. One of the advantages of these programs is their flexibility. They can be used to prepare and present the graphic presentation electronically, using a computer with or without a projector, and they're also capable of printing out paper copies for distribution. Presentation programs typically provide stock templates of graphics, artwork, and layouts as samples that the user can easily modify. More advanced users can add sound or video clips to the presentation, include still photos, and incorporate custom graphics from other programs.

ELECTRONIC GRAPHICS CREATION

4

LEARNING OBJECTIVE Create a basic electronic presentation.

It used to be that when you walked into a courthouse, you knew who was trying a case by the armload of poster board graphics and easels being car-ried by the legal support staff. The use of photographs has always been a common form of exhibit. In fact, the use of photographs is a good lesson

THE ELECTRON IC COURTROOM AND TRIA L PRESENTATION

in what is appropriate for a presentation graphic. While some lawyers carry snapshot,sized photos (4 x 5 in.) and others carry larger photos (8 x 10 in.), it is a good idea to remember the words of a wise old judge to a novice trial attorney: If it's important enough to use a photo, make sure the last person in the jury box and the jL1dge can see it at the same time. With the introduc, tion of overhead projectors and slide and computer projectors, many wiser trial attorneys have given up larger (30 x 40 in.) blow,ups of photos in favor of computer,projected versions (where size is limited only by the size of the screen or wall). The sa1ne is true of drawings and diagra1ns. But always re, member the advice about poorly prepared graphics-do not use them. Graphic creation programs are used to create visuals either as stand,alone graphics or as part of a presentation, such as a PowerPoint presentation. One of the newer classes of graphic software programs that offer templates is SmartDraw. Exhibit 18.4 shows examples of a graphic created for trial. The obvious advantage to this class of software is the ability of the legal team to create its own graphics without the need of artists and outside consultants. It is possible to create trial graphics in court on a laptop computer to meet an unexpected factual twist and to display the image using the laptop and

Exhibit 18.4 Intersection of Accident Scene Created with SmartDraw ACC1ol:N1' OESCRl1PT10N v ·I 1 , I 1 via'- II• .....Jlr J I?;, , on State s~rePt Ar-en, dJ ng lo the eve ,•11tn.?~~ ,, Veh:de 3, 'le.fllc:le 2. r-"n ttiP stop slg n und V-ehlt.le 1 l -c.._ "1ded Vt.•11 I 2. INC:IOrNT NU ... IU ! ••

DAit

3f lli/;tOO~

TlnC1

IG 1• ,,110

9iCU.1f:

Source: Reprinted with permission from SmartDraw.

449

tria l gra phics Visual aids used to enhance a trial presentation.

450

CHAPTER 18

projection unit. Even when the graphics are printed out, these programs pro-vide an electronic backup if the large display boards are delayed in transit or damaged by overzealous cleaning staff. Power Point has become the standard for making electronic presentations of all types to all types of audiences, from grade schools (see Exhibit 18.5) to corporations to courtrooms. A good PowerPoint presentation can reinforce and highlight the speak-er's ideas and concepts. A poor PowerPoint presentation can undermine all the hard work that went into the presentation. While some presentations are designed for only intermittent viewing, in the legal community they are typi-cally used to reinforce ideas, concepts, and thoughts the presenter wants to make to the audience. A few pointers on presentations using PowerPoint: • Viewability. Use background and text color combinations that can be read by everyone in the room. Be aware of the issue of colorblindness and the effects of some colors, like soothing pastel colors and vivid, wake--up colors like red. • Density. Slides should support ideas in as few words as possible; no one wants to read a full page of text. • Sounds. Sounds can be very effective when used appropriately; overdo it, however, and their impact is lost. Also, inappropriate sound effects, like gunshots, may be unacceptable or not permitted to be used in a courtroom. • Stand aside. Even the best presentation is worthless if the presenter is standing in front of it, blocking the viewers' ability to see it. • Imagery. Choose the picture wisely. What is the lasting impression you want to leave in the minds of, say, the jury members when they go into deliberations? Among the most effective pictures in a personal injury case may be a photo of the victim sitting in a wheelchair or lying in a hospital bed no words are necessary.

Exhibit 18.5 PowerPoint Sample Slide

c h

" the n1I :. will f lo hu er o , pla.,. nd Ll'I,

Source: Screen shot reprinted by permission from Microsoft Corporation.

451

THE ELECTRONIC COURTROOM AND TRIAL PRESENTATION

SmartDraw SmartDraw is a graphics creation program that can be used to create stand-alone images, both in print form and in computer slide presentations. In ad-dition to its intuitive user interface, one of its biggest advantages for the legal team is the thousands of templates and icons available for creating graphics quickly. Many of the graphics included in the program anticipate the needs of the legal community and require only minor modification.

ELECTRONIC TRIAL PRESENTATION PROGRAMS More and more courtrooms are providing, or allowing litigants to bring for their trial, computer--based electronic display systems. Some see this as nothing more than a logical outgrowth of the multimedia presentations that started with the use of chalkboards, movie clips, and slide projectors. Modern trial presentations frequently include videotaped depositions and the presentation of images, photos, videos, and portions of documents. These may be exhibited on personal monitors or large--screen displays. Managing the hundreds of individual case components to be displayed in the courtroom can be a trial nightmare unless they are organized and easily accessed for presentation. Litigation presentation programs, like Sanction by LexisNexis and TrialDirector by inData, are multifaceted trial presentation pro-grams that provide a comprehensive approach to presenting all types of exhib-its in the courtroom, including documents, photographs, graphic images, video presentations, and recorded depositions. Unlike PowerPoint, which requires the creation of individual slides, these programs allow existing documents and files to be presented b y simply copying them into the program data file and making a selection for presentation. Trial presentation programs, like Sanction, are thus databases of the documents either in a case file or on a computer. The selection of the individual items for presentation is facilitated by a panel that allows a preview of the item selected. The final presentation is usu-ally previewable on a computer or on a laptop screen using the dual--monitor mode before being projected, as shown in Exhibit 18.6. Sanction, T rialDirector, and similar trial presentation programs allow the legal team to organize and manage the documents, depositions, photo-graphs, and other data as exhibits for trial and then display them as evidence when needed in depositions and trial.

PRACTICE TIP SUPPORTED FORMATS Not al I native formats can be used in al I trial presentation programs, just as not all music files can be played on every brand of portable music player. Early in the preparation process, it is wise to check the formats supported by the trial presentation program selected for trial to ensure compatibi I ity and avoid scrambling near the trial date to convert or find suitable replacements.

Limitations on Presentation Graphics Any limitations on using presentation graphics are determined by the equip-ment in the courtroom. If the courtroom is not set up with appropriate power sources, screens, or monitors, computer presentations will not work, and print exhibits may still be needed. A key issue for the legal support staff is to determine well in advance of trial the availability of technical resources in the

LEARNING OBJECTIVE

5

Explain the use of trial presentation programs.

trial presentation program Computer program that organizes and manages documents, depositions, photographs, and other data used as exhibits for trial and displays them as evidence when needed.

452

CHAPTER 18

Exhibit 18.6 Sanction Dual-Monitor Mode for Courtroom Presentation Allows the Trial Team to See the Image before It Is Projected on the Courtroom and Individual Monitors

.

-·

r

Source: Sanction LexisNexis. Reprinted with permission.

,,

WEB RESOURCES

~

For complete informa,. ~• tion and documentation on the Matthew J. Perry, Jr. Courthouse in Columbia, South Carolina, go to the United States District Court for the District of South Carolina website: http:// www.scd.uscourts.gov/ .

courtroom in which the trial will take place. If the courtroom is not equipped for computer presentations, will the court allow the installation and use of computer presentation equipment? And, if all of the equipment must be sup-plied, will the client be willing to pay the costs associated with acquiring or renting and installing the needed hardware? The following information and the photographs in Exhibits 18. 7, 18.8, and 18.9 are from online material available at the U.S. District Court for the District of South Carolina website, which opened its first fully electronic

Exhibit 18.8 Counsel Tables

Exhibit 18.7 Judge's Bench

United States District Court of Minnesota.

United States District Court of Minnesota.

THE ELECTRONIC COURTROOM AND TRIAL PRESENTATION

Exhibit 18.9 Jury Box

453

Exhibit 18.10 Counsel Lectern with Document Camera and Large-Screen Display

United States District Court of Minnesota.

United States District Court of Minnesota.

courtrooms at the Matthew J. Perry, Jr. Federal Courthouse in Columbia, South Carolina. They offer a glimpse into the features and equipment that might be found in other courtrooms and courthouses. V ideo monitors are strategically placed around the courtroom. The judge's bench (Exhibit 18. 7), the witness stand, the courtroom deputy, each of the counsel tables (Exhibit 18.8), and the jury box (Exhibit 18.9) have a video monitor to display the evidence. The jury box has one flat--panel monitor placed between every two juror chairs. There are also large-screen monitors for displaying evidence using a docu-ment camera or other electronic media (Exhibit 18.10) just inside the well of the court, so those in the gallery can view evidence displayed through the system. At the heart of the electronic courtroom is the visual presentation cart, or media center, which contains most of the presentation electronics, including:

document camera, • • annotation monitor, interpreter box, infrared headphones, laptop port, VCR, and dual-cassette player. In addition to the electronic courtroom capabilities, videoconferenc-ing technology is available in any courtroom at the Matthew J. Perry, Jr. Courthouse.

large-screen monitor A video monitor conven iently located in the courtroom that is large enough for all to see the graph ics displayed.

vis ual presentation cart A media center courtroom.

located

in

the

document camera A portable evidence-presentation system equipped with a high-resolution camera.

annotation monitor A monitor that allows a witness to easily make on-screen annotations with the touch of a finger.

interp reter box Routes language translations from an interpreter to the witness/defendant's headphones or the courtroom's public address system.

infrared headphones An assisted listening device for the hearing impaired.

laptop po rt A connection into which a laptop may be plugged.

VCR

Electronic Equipment in the Courtroom

Equipment that plays back video and audio.

Document Camera

d ual-cassette player

The document camera (Exhibit 18.11) is an easy--to--operate, portable evidence-presentation system. This unit is equipped w ith a high--resolution camera and features a 12: 1 magnification zoom lens with a high--accuracy, auto--focusing

Equipment that plays back audio.

454

CHAPTER 18

Exhibit 18.11 Document Camera

Exhibit 18.12 Annotation Monitor

United Stat~ District Court.

un;ted Statk District Court.

system. The document camera can present evidence (e.g., J ..D objects, paper documents, transparencies, X.-rays. etc.) fo r display on monitors t hroughout the courtr oom,

Annotation Monitor Annotation monito rs (Exhib it 18.12) allow a witness to easily make on ..screen annotations with the touch of a finger. Annotations can be made by pressing lightly and dragging your finger as you would a pen. Interpreter Box The interpreter box (Exhibit 18.13) routes language translations from an in, terpreter to the witness/defendant's headphones o r to the courtroom's public address system. Infrared Headphones Infrared headphones (Exhibit 18. 14) are used as an assisted listening device for the hearing impaired. The Americans with Disabilit ies Act requires this type of device to be available fo r any individual needing it. It can a lso be used in conjunction with the interpreter box for language interpretations.

PRACTICE TIP GITTING TECHNOLOGY TO WORK IN THE COURTROOM-A PRESENTATION APPROACH Try ii out ahead o( lime. Have backup equipment Have a sc:para1e opcrar0t. Know the passwords.

THE ELECTRONIC COURTROOM AND TRIAL PRESENTATION

Exhibit 18.13 Interpreter Box

455

Exhibit 18.14 Infrared Headphones

Apenures -

for allen ng

tl1e fre Que ncy

response

T,ll'o IR receiving diodes (b el1111d spec,.al

plastic cover I Chan11ol seloctor switch Fl

I

On/offlvolun1e conlfol

United States District Court.

United States District Court.

CONCEPT REVIEW AND REINFORCEMENT

electronic courtroom 444 presentation graphic 448

visual presentation cart

trial graphics 449 trial presentation program

annotation monitor

large--screen monitor

453

document camera 451

453

453 453

laptop port

VCR

453

453

dual--cassette player

453

interpreter box 453 infrared head phones 453

THE ELECTRONIC COURTROOM AND TRIAL PRESENTATION Introduction to the Electronic Courthouse

Technology has changed the way that courts perform their traditional functions, recognizing the demand for swift justice.

The Electronic Courtroom

Electronic and court--based systems are increasingly being used in the courts. As budgets allow, courtrooms are being outfitted with comput-ers and audiovisual presentation systems. Courtrooms are being wired with technology ranging from the very basic to highly sophisticated technology, with monitors and computers at every workstation for the lawyers, the judge, and the jury. (continued)

456 CHAPTER 18 Working with Courthouse Technology Staff

Courtrooms generally have support personnel who are available to assist the members of the litigation team in the use of the technology available in the courtroom or the courthouse. They are also the key people to contact when permission is needed to bring equipment into the courthouse on the day of trial. Good working relations with the technical support staff can be invaluable when everything goes wrong and backup equipment is needed on an emergency basis.

Using Technology to Present the Case

Properly prepared graphics are an excellent way of telling a story and making a point. The most accessible presentation software programs are Microsoft PowerPoint, Corel Presentation, and SmartDraw. Courtrooms are providing, or allowing litigants to provide for their trial, computer,based electronic display systems. Trial presentations frequently include videotaped depositions and the display of images, photos, videos, and portions of documents. Trial presentation programs allow the legal team to organize and manage the documents, depositions, photographs, and other data used as exhibits for trial and then display them as evidence when needed. • Sanction and TrialDirector-These trial presentation programs are electronic trial presentation software applications. • Supported formats-Not all native formats can be used in all trial presentation programs. It is wise, early in the preparation process, to check the formats supported by the trial presentation program selected for trial to ensure compatibility.

Electronic Graphics Creation

Properly prepared graphic presentations assist in presenting a case. Graphic software like SmartDraw makes the creation of trial graphics quick and easy.

REVIEW QUESTIONS AND EXERCISES 1. List and explain some of the advantages of the 2. 3. 4.

5.

use of technology in litigation. What are the functions for which a litigation team uses litigation presentation progran1s? How can PowerPoint be used as a litigation presentation program? How can the legal team use presentation graph, ics programs? Give examples of both litigation and nonlitigation uses. Explain the use of trial presentation programs.

6. What can you do when the power fails during a trial? 7. List and explain considerations in the creation of presentation graphics. 8. List and explain limitations on presentation graphics used at trial. 9. Why is the courthouse technology team i111por, tant to the legal team?

THE ELECTRONIC COURTROOM AND TRIAL PRESENTATION

457

BUILDING YOUR PARALEGAL SKILLS INTERNET AND TECHNOLOGY EXERCISES 1. Use the Internet to locate resources for learn-ing how to use Microsoft Power Point. List the topics available and the web address for access-ing this information. 2. What Internet resources are available for obtaining maps and aerial views that might be used for trial preparation? 3. Using the court you selected to file the lawsuit in the exercise in Chapter 4, find out what information is available online about the proce-dural aspects and the electronic capabilities of the courtrooms. 4. Create an accident scene exhibit using a graph-ics software program.

5. Create a basic Power Point presentation on the use of Power Point in litigation. 6. Create a basic PowerPoint presentation on the use of PowerPoint by the legal team, including an explanation of how to make a slide. 7. Prepare a PowerPoint presentation for use in trial using the exhibits in the comprehensive tort case study in Appendix 1 and the graphics prepared using SmartDraw Legal Edition and LexisNexis TimeMap. 8. Create a presentation for use in court using Sanction for the comprehensive tort case study in Appendix 1.

CIVIL LITIGATION VIDEO CASE STUDIES Expert Witness Video Deposition An expert witness has his deposition videotaped.

After viewing the video at www.pearson.com/ goldman-civil-litigation, answer the following • questions. 1. How may a videotaped deposition of an expert witness be used in trial? 2. What are the advantages and disadvantages to using videotaped depositions?

CHAPTER OPENING SCENARIO CASE STUDY Use the Opening Scenario for this chapter to an-swer the following questions. 1. How can all the needed equipment be used in court without having to use a truck to carry all the documents and exhibits? 2. How can graphics be used in the trial? 3. What are the advantages and disadvantages of the different trial graphics options, in soft. . ware cost and the time needed for preparation? Explain, using specific software costs.

4. What are the possible methods of presenting expert testimony? Describe the advantages and disadvantages of each. 5. What cautions should the trial attorney con-sider in using graphics at trial? 6. What pretrial measures should be taken if trial graphics are going to be used?

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CHAPTER 18

SCHOOL BUS-TRUCK ACCIDENT CASE Review the assigned case study in Appendix 2. 1. Prepare a PowerPoint presentation for use in trial using the exhibits in the comprehensive case study in Appendix 2 and the graphics prepared using SmartDraw and LexisNexis TimeMap.

2. Create a presentation for use in court using Sanction for the comprehensive case study in Appendix 2.

BUILDING YOUR PROFESSIONAL PORTFOLIO AND LITIGATION REFERENCE MANUAL

JJI/ /}}I ••

CIVIL LITIGATION TEAM AT WORK See page 18 for instructions on Building Your Professional Portfolio. Form Prepare a form engagement letter for all outside consultants who work on a case, stating their obliga-tion to keep everything confidential.

Contacts and Resources 1. Internet address of resources for learning how to use Microsoft PowerPoint 2. Internet resources for obtaining maps and aer-ial views of locations 3. Technology contact or court technology office in your local and federal courts

VIRTUAL LAW OFFICE EXPERIENCE SCHOOL BUS-TRUCK ACCIDENT CASE To: Paralegal Intern From: Roy Saunders Case Name: School Bus-Truck Accident Case Re: Trial presentation

I am considering using a slide show during the opening statement and closing argument that will impact the jury, since I believe a picture is worth a thousand words. 1. Review the images, photographs, and other exhibits contained in the case files. 2. Using Power Point, prepare a slide presentation that will enhance the opening statement and closing argument I will make at trial.

'

' '

LEARNING OBJECTIVES After studying this chapter, you should be able to: 1. Describe the procedure and purpose of entering a judgment of record. 2. Identify the types of errors made at trial.

3. Describe the procedures available to seek relief from the trial court for errors made at trial.

4. List the requirements for perfecting an appeal. 5. Describe the appeal process in the United States Court of Appeals and the United States Supreme Court.

•

r1a roce

CHAPTER

ures

OPENING SCENARIO The entire legal team attorneys and staff from both offices waited anxiously in the downtown office conference room for the judge's law clerk to call and let them know the jury had reached a verdict. With so many claims and issues, it was likely to be some time before they would get the call to return to the courtroom. Mr. Saunders, Mr. Benjamin, Ms. Eden, and their paralegal, Caitlin, gathered at one end of the conference room while Mr. Mason, Ms. Marshall, and their paralegal, Emily, were at the other. There was no sense in wasting time. They were going over the trial while the events were fresh in their minds, comparing notes and looking for potential areas of procedural error that could be used for reconsideration or appeal, if necessary. They did not have a transcript because the costs to obtain it on a daily basis far exceeded their or their clients' ability to pay for one. Based on the hoped--for verdicts, the paralegals were asked to prepare draft orders for the judge to sign as well as to start preparation of any motions that might be needed.

OPENING SCENARIO LEARNING OBJECTIVE Prepare an appeal of an adverse decision in a civil trial court for filing in your jurisdiction.

VIDEO INTRODUCTION

Post-Trial Procedures After watching the video at www.pearson.com/goldman--civil--litigation, answer the following questions: 1. What post verdict activity might a legal team have? 2. What time limits are critical after the verdict?

461

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CHAPTER 19

INTRODUCTION TO POSTTRIAL PROCEDURES After the jury has rendered its verdict, win or lose, the legal team needs to anticipate the next step in the civil litigation process posttrial procedures and relief. If errors are alleged to have been made by the court in the conduct of the trial, depending upon the nature and effect on the client's case, steps may need to be taken to correct those errors. If a verdict was entered in favor of the cli-ent, it must be procedurally turned into an enforceable judgment. Time limits on posttrial motions, appeals to higher courts, and action on judgments must be investigated and carefully observed to avoid losing rights to posttrial relief.

ENTERING JUDGMENT LEARNING OBJECTIVE

1

Describe the procedure and purpose of entering a judgment of record.

motion for judgment on t he pleadings A motion filed at the conclusion of the pleadings phase of the litigation by either the plaintiff or the defendant in order to end the lawsuit.

motion for summary judgment A motion by which a party seeks to terminate the lawsuit prior to trial, alleging there are no disputed material facts and all that remains is the application of the law to the facts.

There are several ways in which litigation might terminate, resulting in judg-ment entered on the official court record, the docket: 1. 2. 3. 4. 5. 6.

motion for judgment on the pleadings, motion for summary judgment, default judgment, bench trial verdict, jury verdict, or final ruling of an appellate court verdict.

Motion for a Judgment on the Pleadings. After the conclusion of the plead-ings phase of the litigation, either the plaintiff or the defend ant may file a motion for a judgment on the pleadings, claiming that he is entitled to judgment in his favor as a matter of law. The motion asks the court to consider everything contained in the pleadings (and not any outside matters) in the light most fa . . vorable to the non--moving party (the opposing party). If there are no disputed material facts, the moving party is entitled to judgment. ''Undisputed facts,'' in this context, means that any fact denied by the opposing party is considered as not true, and all of the opposing party's allegations are treated as true. Because either party can bring the motion, judgment may be entered in either' s favor. Motion for Summary Judgment. At any time, any of the parties to the litiga-tion may file a motion for summary judgment. A motion for summary judg. . ment is decided in the same way as the motion for judgment on the pleadings, except that the court can look at items outside the pleadings. As with the mo-tion for a judgment on the pleadings, the court views the pleadings in the light most favorable to the non--moving party. All that remains is the application of the law to the facts, which requires entry of judgment in favor of the moving party. The difference is that in the motion for summary judgment, the court can consider more than just the pleadings. For example, the court can look at responses to written discovery requests, deposition transcripts, and affidavits. Both of these motions determine, as a matter of law, whether one of the parties is entitled to judgment in its favor. At trial, attorneys make oral mo-tions for directed verdict, asking the judge to dismiss the lawsuit or enter judgment in favor of their client. An entry of default judgment occurs when a party fails to respond to a pleading containing claims against him or her for example, if the defendant fails to file an answer to the complaint or the plaintiff fails to respond to affirmative defenses and counterclaims raised by the defendant.

POSTTRIA L PROCED URES

Verdict. At the conclusion of trial, the jury or a judge sitting in a bench trial returns a verdict, which results in a determination of liability or fault and an award of damages. Although all of these end the litigation, none has any effect on the liti~ gants until judgment is entered on the written record of the docket in the office of the court that maintains the court records-sometimes called the clerk of court or prothonotary. This is particularly true of a jury verdict and an oral motion granted at trial. The force of law accompanies these only after they are reduced to a written court order, the judgment, and it is entered on the docket. The date of the entry of judgment is the date from which all dates for posttrial proceedings are calculated. In many instances, the judge will orally enter judgment following comple~ tion of the case or annoL1ncement of the jury verdict. It is incumbent llpon the litigants to make sure the judge's oral statements from the bench become part of the written record and are entered on the docket. If the judge has not previously been provided with a blank copy of the order of court to sign, one that conforms to the verdict of judg1nent rendered may need to be prepared and submitted for the judge's signature. Entry of judgment in the federal courts requires that a separate written document be filed with the clerk of court. Although Fed. R. Civ. P . 58 speci~ fies some instances where a separate document is not required, the better practice is to be prepared to offer the judge the necessary documents to sign for entry of judgment. Many local rules require the attorneys to take the steps necessary to ensure that the judgment has been entered into record. Whether the judgment is prepared by the judge on his own or by the at~ torneys at the ju dge's direction, the form is the same. Exhibit 19.1 shows a form for entry of judgment on jury verdict. The form is found as Form 70 in the Appendix of Forms to the Federal Rules of Civil Procedure. The form may be adapted to meet the circumstances of the particular case.

ve rd ict The decision reached by the jury, or judge in a bench trial, that concludes the case.

entry of ju dgm ent Taking the verdict announced by the jury and converting it to a legally enforceable judgment.

Exhibit 19.1 Sample form for entry of judgment in Federal Distri ct Court IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA John Smith, Plaintiff

•

v.

•

Mack Truck Company, Defendant

• • •

Civil Action #

•

•

•

463

Judgment

•

•

This action came for trial before the Court and a jury, Honorable Nonna Shapiro, District Judge, presiding, and the issues having been duly tried and the jury having duly rendered its verdict, It is Ordered and Adjudged That the Plaintiff, Smith recover of the Defendant Mack Truck Company the sum of $250,000 with interest thereon at the rate of six (6°/o) percent as provided by law, and his costs of action. Dated at Philadelphia, Pennsylvania, this _ _ day of _ _ 20_ _.

Clerk of Court

464 CHAPTER 19

ERRORS MADE AT TRIAL LEARN ING O BJECTIVE 2 Identify the types of errors made at trial.

An error made at trial by the judge with regard to the admission or exclusion of evidence.

Once judgment is entered on the record, the clock begins to run for the at; torney to pursue posttrial relief . P osttrial relief includes the identification of errors made at trial that impacted the client's case and its outcome and the procedures needed to correct those errors. Because of the short period of time (usually 10 days) to take action and file documents with the court, the determination of the existence of error n1ight have to be made without the benefit of a trial transcript to review. Instead, this determination of error may be made based on the attorney's memory and the notes kept by the paralegal and other members of the trial team during the trial. Errors made at trial are generally errors made by the judge related to pro; cedure, such as rulings on objections made at trial. These rulings fall into two broad categories: errors m ade in e videntiary rulings and e rrors made in instruc tions to the jury. A third area of error at trial occurs when the jury verdict is unsupporte d by the evide n ce or is contrary to the evidence.

error made in instructions to . 1ury

Evidentiary Rulings

posttrial reli ef Action, such as an appeal to a higher court, taken by one of the litigants to correct errors made at trial.

erro r made in evidentiary ruling

An error made at trial by the judge with regard to the instructions given to the jury or the recitation of the instructions.

verd ict unsu pported by evidence An error made at trial where the verdict of the jury is not supported by the evidence or the verdict disregards the law as presented in the jury instructions.

p reserving the record The obligation of the attorney to raise objection to mistakes made at trial. The objection gives the trial judge notice of an error he may be about to make or ,nay have already made and gives the judge the opportunity to correct that error at trial.

continuing objection An acknowledgment in the record of the trial that the attorney objects to particular testimony or evidence without her having to object each time the witness answers a question. The purpose is to permit the testimony to be presented seamlessly without the attorney waiving the error of the testimony's admission.

One type of error made at trial is related to the admission or exclusion of evi; dence, including the testi1nony of witnesses or exhibits and other evidence. Disputes concerning known or expected issues of the admission or exclusion of evidence are usually raised in the pretrial memorandum. During the final pre; trial conference, the judge will issue a ruling on the admissibility of evidence as raised in the pretrial memorandL1m. For example, in a contested will case, the parties may have included in their pretrial memoranda an issue related to hear; say: Are oral statements of the decedent's surviving spouse, who is now incapacitated and unavailable to testify at trial, admissible as an exception to the hearsay rule? The judge may decide that all statements of the decedent's spouse, even hearsay, are relevant and admissible in determining the decedent's intent. The court may justify this ruling by saying the determination of intent outweighs the potential prejudice created by the unreliability of hearsay evidence. Alternatively, the judge could exclL1de the testimony of a witness because it is unreliable "double hearsay" (e.g., the witness would testify that the wife told her what the husband had said about the distribution of his estate). With either ruling, one side will be dissatisfied with the judge's admission or exclusion of the testimony. Assume for the moment that the judge ruled to permit hearsay testimony. When the witness is called to testify at trial, the opposing attorney will object to the testimony. The judge then has a second chance to rule on the admissi; bility of the testimony. Again, regardless of the ruling made during trial, one side will be dissatisfied with the decision. A crucial part of the trial is preserving the record for appeal. The con; cept requires counsel to take steps to bring any error to the court's attention and to seek its correction as soon as possible. This obligation is a continuing one, and each time the error arises, the attorney 1nust object in order to pre; serve the objection on the record for possible appeal. Sometimes the judge will recognize that a party intends to object and, for ease of the presentation of evidence, will permit a c ontinuing objec tion to be p laced on the record. The continuing objection applies to all evidence related to that issue and that witness. Failure to object, which draws the court's attention to the error, re; sults in a waiver of the issue-the objection-on appeal. Thus, even though counsel in the preceding example was aware of the judge's pretrial ruling (to

POSTIRIAL PROCEDURES 465 permit the hearsay), counsel renewed or again raised her objectio n to the adn1issibility o f the testimony when it was p resented at trial. Preserv ing the record applies to all evidence presented at trial, not just testimon y of w itnesses. Adm ission of pho tographs may be an erro r because they do not d epict the scene of the accid ent accurately. An expert's opinio n on the cause of an accident may be admitted in erro r because the expert as.. sumed fac ts that are not part of the case o r the expert was not p roperly quali, fied to render an opin io n .

Instructions to the Jury The second type of erro r may occur in the instructio ns given to the jur y. T he jury hears all the evidence and then is instr ucted by the judge in th e law that is ap plicable to the case. P roposed jury instr uctions are usually p resented to the judge by both attorneys in their p ret r ial m emorand a and i n a conference held by the judge with the t r ial attorneys at t he dose of evidence. A lthough the attorneys may p resent proposed instructio ns, the judge makes t he ultimate decision as to w hat instructions the jury should receive. T he judge delivers those instr uctions ora lly to the jury. Erro r m ay be found in t he instructions the.m selves o r in the recitation of the instructions to the jur y. Fo r exam ple. the injur ed passenger in a single..-car automobile accident sues the d river. The evid ence shows that the injured passenger ,vas intoxicated , but t he d river was no t. T he law states that into xication of a d r iver involved in an automobile accident is a facto r in assessing liability or fa ult. T he judge instructs the jury. " Intoxication m a)' be cons idered in finding fault o r liability of the d river .'' This instr uctio n m ay be made in error because it is an incomp lete state.. m ent of the law and potentially m isleads the jury to consider the intox ication of the passenger, w hich is no t a fac to r in determining the liability o f the d river.

Verdict Unsupported by the Evidence The th ird t)'pe of err o r made at trial relates to the actions of the jury. In some cases, the jury fails to cons ider a ll o f the evidence or m isap plies the law. Under these circum stances, there is no erro r by the judge in admitting o r ex.. eluding evidence or in instructing the jury. Rather , the ju ry, as sh own by its verd ict, has either d isregarded evidence or has inaccurately applied the law. T ypically, this type of erro r results fro m a h ighly emo tio n al case where the m embers of the jury strongly iden ti fied with o ne of the parties to the lawsuit o r the w ro ng com p lained of. A strong emotional reaction can cloud a jur y's decision making and result in a verdict that is u nsu pported by the evidence o r is against the law. In som e cases, the d ecis io n as co liability of the parties to the lawsuit w ill be supported by the evidence and the law, b ut the calculatio n of dam ages may be out of proportion. Consider the infamo us NkDonald's coffee case, where a patro n who o r.. dered . received , and paid fo r a cup of coffee at the drive-through window was burned when the hot coffee spilled in her lap. The jury awarded her $ 2.9 mil, lion-$200,000 represented dam ages to compensate for her injuries and $ 2. i million represen ted dam ages to pu nish McDonald's. T he wom an was assigned 20 percent comparative negligence, which reduced the compensato ry dam ages to $160,000. A lthough the evidence supported the liability of McDonald's fo r serv ing coffee at a temperature that was too high, the p unitive dam ages were d etermined by the t rial judge to be u nsupported by the evidence and disproportionate to the compensato ry award. Thus, the judge reduced the

466

CHAPTER 19

punitive damages to $480,000, or three times th e compen satory award. The multimillion --dollar verdict was highly publicized. H owever , the judge's reduc-tion of th e jury award was n ot, n or was the fact that the parties u ltimately set-tled out of court for an un disclosed sum believed t o b e significantly lower than the judge's ru ling. Exhibit 19.2 is an article d escribing th e specifics of th e case.

Exhibit 19.2 The McDonald's scalding coffee case THE MCDONALD'S SCALDING COFFEE CASE Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonald's coffee in February 1992. Liebeck, now 81, ordered coffee that was served in a styrofoam cup at the drive-through window of a local McDonald's. After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.) Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap. The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonald's refused. During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. This history documented McDonald's knowledge about the extent and nature of this hazard. McDonald's also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees. Further, McDonald's quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degree or above, and that McDonald's coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald's had no intention of reducing the "holding temperature" of its coffee. Plaintiff's expert, a scholar in thermodynamics as applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn. McDonald's asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving. McDonald's also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard. The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2. 7 million in punitive damages, which equals about two days of McDonald's coffee sales. Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonald's had dropped to 158 degrees Fahrenheit. The trial court subsequently reduced the punitive award to $480,000-or three times compensatory damages-even though the judge called McDonald's conduct reckless, callous and willful. Subsequent to remittitur, the parties entered a post-verdict settlement. Source: Reprinted with permission from Georgia Trial Lawyers Association (GTLA). Copyright © 2002. All Rights Reserved.

POSTIRIAL PROCEDURES 467

Harniless Error Not all mistakes m ade at trial result in appealable issu es. For an erro r to be the foundation of an appeal, it n1ust have resulted in harm o r prejudice to one o f th e litigants. T he appealable error made must be one that im pacted t he outco1ne o f the t ria1. A n exam ple thar1s easy to understand is the exclu.. sion of an alibi witness in a crim inal trial. [f t he wit ness were to testi fy con .. cerning the whereabou ts of the defendant, the o utcome of the case would go a certain way. [f the alibi witness were excluded , the o utcom e of the case could be entirely diffe rent. Exclusio n of the testimony harms the defendant and would be an appea lable error. A new trial, which includes the testimony of the alibi w itness, is the appropriate rem ed y. Often , e rro rs are mad e at t r ial that d o no t result in har m to either party. The judge may admit o r exclude evidence o r g ive a jury charge t hat is inco r.. rect. \Xlhe re that erro r does no t contribute to an u nfavo rable outcome fo r either of the litigants, it is considered ham1less err·o r. and no corrective ac.. tion (appeal} is required . T o mustrate, let's return to t he contested will c-ase and the ad missio n o f the hearsay statem ents. Fo r this exam ple, assume the hearsay testimony is admitted into evid ence. A lso ad mitted a re several hand .. w ritten let ters that h ave been authen ticated as having been w rit ten by the deced ent. T he letters contain the d eceden t's in tent fo r the disposit io n of his assets after his death, essentially the sam e info rmatio n given in the o ral hear .. say testi mony. O n appeal, the e rro r being r eviewed would be the admissio n of the o ral hearsay testimony. The a ppellate court would hold that it was an erro r to admit the hearsayt b ut because the sam e evidence was available fro n1 ano ther sou rce, it is u nlikely that t he erro neous ad1nission of the hearsay resulted in ha rm . Thus, the ad missio n of the hearsay is harmless e rro r.

appcafahlc error An error made at lrial that causes harm or prejudice to a litigant.

harmless error An error made al tri.al that has no impad on the oulcome o( the case.

MOTIONS SEEKING RELI EF FROM THE TRIAL COURT Fo llowing the entry of th e verdict, the jury w ill be excused and the attorneys offered an opportunity to m ake any o ral motions for relief to t he trial court.. These m o tions must also be m ade in w riting w ithi n as few as LO days fro m the entry of judgm ent. T hese motio ns include a motion for judgn1e.nt as a matter of law, motio n for a new t r ial. and m otion to mold the verd ict.

LEARNING O &JECTIVE

3

Describe the procedures available to seek relief from the trial court for errors made at trial.

Motion for Judgment as a Matter of Law A motion for a judgment as a matter of la,v (also kno \\lTI as judgment no twith.. standing the verdict, o r judgment n.o.v.), asks the trial judge to review and overturn the jury verdict (Fed. R. Civ. P. SO(b)). T his motion addresses erro rs by the jury and says: (1) the jury's decisio n is against the weight of the evidence and/or (2) the ju ry has disregarded the law as instructed by the judge, and after reviewing the record, no reasonable minds could disagr ee about w hat the out.. con1e of the case should be. However, the jury did not rule in that manner.

motion tor judgment a!. a maller ot lavv I\ postlrial motion thal asks lhe judge to overturn the jury verdict because ii

is unsupported by the evidence or dis· regards the law. (Formerly known as a judgme nt n.o.v. or judgment notwith· standing the verdict.)

Motion for a New Trial A 1notion for a new trial asserts that an erro r was made in a trial, whether by the judge o r by the jury. The error can be related to t he ad mission of evi.. dence, the instructio ns to the jury, o r a verdict u nsuppo rted by the law o r ev.. idence. O ften t he erro r is related to somethi ng that occurred at t r ia l th at was so prejudicial that it would be a denial o f justice to let the jury verdict stand.

motion fot new trial A posttria l motion lhat asks for a new triaJ because errors were made dur· i.ng the trial that make the verdid unreliable.

468

CHAPTER 19

IN THE WORDS OF THE COURT ... Standard of Clear Error Parts and flee. Motors, Inc. v. Sterling flee., Inc.,

866 F.2d 228, 233 (7th Cir. 1988) " ... To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated duri ng oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish."

Motion to Mold the Verdict motion to mold the verdict A posttrial motion that asks the judge to calculate the amount due on the verdict.

A motion to mold the ve rdict asks the cou rt to t ake the ju ry verdict and calculat e the amoun t that the defen dan t is obligated to pay th e plaintiff. T h is motion is n ecessary w h ere the defendant is successful on h is coun terclaim or where th e plaintiff h as been assigned some portio n of negligence in a com-parative n egligence jurisdiction . Exhibit 19.3 sh ows a jury verdict slip that would requ ire a motion to mold th e verdict. Exhibit 19 .4 shows how the verdict might be molded.

Exhi bit 19.3 Sample jury verdi ct slip that requires motion for a molded verdi ct (Caption of the Case) On the First Count Defendant caused the accident X Yes No Accident caused the injury X Yes

No

Plaintiff injuries resulted in damages. X Yes No Plaintiff caused the accident X Yes

No

If yes to above please assigned percentage of liability 30°10 to plaintiff 70°10 to defendant Damages sustained by Plaintiff

$300,000. 00 On the Second Count Plaintiff breached the contract No X Yes Defendant suffered damages as a result of the Plaintiff's breach X Yes No Damages sustained by Defendant

$30,000.00

POSTIRIAL PROCEDURES 469

Exhibit 19.4 Molded verdict Molded Verdict On Count I Judgment in favor of the Plaintiff in the sum of $210,000 On Count II Judgment in favor of the Defendant in the sum on $30,000 Final Judgment in Favor of the Plaintiff and against the Defendant in the sum of S180,000.

Local Ru les It is important to check the local rules in effect in your jurisdiction. \Vhether in federal court o r state court, there wiJJ be a set of local rules fo r the specific court in which you are litigating your case. In some state courts, a panel of trial judges, usually numbering three, must review the trial proceedings before the judgment of the trial judge is considered ftnal and appealable. This is accomplished by a n1o tion for an en bane revie,v. In other cou rts, where the case is tried by a judge without a jury, the judgment of the judge is not final until a written opinion set, ting fo rth the judge's findings of facts and conclusions of law is issued.

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